Vermule v. Shaw
Before: Heydeneeldt, Murray
Synopsis
Appeal from the County Court of the County of Santa Clara.
This was an action of forcible entry and detainer. The plaintiff claimed 160 acres of land near the City of San José under the pre-emption laws of the United States, and by virtue of an Act of the Legislature of California, entitled “An Act prescribing the mode of Maintaining and Defending Possessory Actions on Public Lands in this State,” a verdict was rendered against the defendant. He moved for a new trial, and judgment being entered against him, he appealed to the County Court.
The plaintiff moved the County Court to dismiss the appeal, on the grounds stated in the appellant’s first point. The Court refused to dismiss the appeal and the plaintiff excepted. The Court tried the case without a jury, by consent, and rendered a judgment for the defendant, from which the plaintiff appealed. A statement of facts was duly [215] served and filed by the plaintiff, * and an amended statement was duly served and filed by the defendant. But the Court did not settle the statement.
1st. The County Court erred in overruling the motion to dismiss the appeal from the Justice’s Court, because there was a motion for a new trial still pending in the Justice’s Court, and because the costs of the Court were not paid, as required by law, before an appeal could be taken. (See Compiled Laws, p. 632, § 627.)
2d. The County Court erred in refusing to permit plaintiff and appellant to show how the land was improved or enhanced in value by the improvements of the plaintiff and and appellant, that being a. material point to be proven. ( See § 4 Possessory Act, Compiled Laws, 897.)
3d. There was a forcible and unlawful entry and unlawful detainer by the defendant, in the actual possession, of plaintiff, and the County Court erred in refusing to give judgment for the plaintiff and appellant.
4th. There was no finding of the facts by the Court sitting as a jury, as the law requires, upon which to base the judgment of the Court. The judgment was entered on the 11th day of May, and the finding of the Court was not made until the 12th day of May, A. D. 1851, being after the rendition and entry of judgment, and after the Court had adjourned.
Opinion — Heydeneeldt
Mr. Justice Heydeneeldt delivered the opinion of the Court.
The statement in this case is not certified by the Judge, nor agreed upon by the parties. It is, therefore, no part of the record, and thus are excluded from our consideration the second and third points made by the appellant which depend upon it.
Upon the first point there is no error, because it must be supposed that the motion for a new trial before the Justice was abandoned, which the defendant had the right to do.
The fourth point made is, that the Judge who tried the cause did not file his finding of the facts until after the judgment was entered. It seems that judgment was entered on the 11th; on * the same day the Judge [216] wrote his findings of fact and conclusions of law; but did not file the paper containing them until the next day.
It is now urged, upon the authority of Russel v. Armador, 2 Cal. 305, that this was error. But the case cited does not sustain the appellant. It only decides, that without the decision in writing of the Judge, the judgment cannot stand. It must be the basis of the judgment, like the special verdict of a jury, but that is its legal effect and operation. It is not necessary for this legal effect, that it should precede the judgment in point of time. The verdict of a jury must precede the judgment, from the nature and character of that institution, as a part of the judicial machinery of the Court; but where the jury is not resorted to, and their province is entrusted to the same head which declares the law and announces its decree, ■ I see no reason for establishing an unbending regulation as to the order of time in which the particular acts necessary for a valid judgment should take [217]place. Such a rule would work great inconvenience, engender constant delays, and might, in many cases, result in a denial of justice. We, thefore, decide, that as to the time required for the written decision to be filed, or the relative order in which it should be done, the Act is only directory.
Judgment affirmed.
Dissent — Murray
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