Grass Valley Quartz Mining Co. v. Stackhouse

Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred.

There are two errors, on account of which this case must go back. The first is the refusal of the Court to permit the plaintiffs to strike out their claim for damages. I can imagine no right better established than that of any party to waive a recovery for damages, without regard to the purpose which may influence him. And it often happens in Courts of record even after verdict and judgment, that a party is compelled to enter a remittitur of damages in order to conform his recovery to his actual rights; and it is a privilege which is certainly never denied, whether the question is one of jurisdiction or otherwise.

In this case particularly, the plaintiff was right in moving to withdraw his claim for damages, for in Van Etten & Steele v. Jilson, at the January term, 1856, we held that justices of the peace had no jurisdiction of such claims, in actions of this character, and that case was reversed because the ground of its dismissal was a prayer for damages exceeding the jurisdiction of the justice, the Court holding that it should have been stricken out or disregarded, and ought not to have turned the party out of Court,

2. The other error consists in the refusal of the Court to permit one of the plaintiffs to be introduced as a witness to prove the loss and destruction of certain mining rules and regulations, as a predicate for the introduction of secondary evidence to prove their contents. This is error beyond any question. The rule is well settled, and needs no discussion.

The judgment is reversed, and the cause remanded.