Waltham v. Carson (1858) · DecisionDepot

Waltham v. Carson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1858Published

Before: Field

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Holding. The court held that a defendant waives the right to a jury trial by failing to appear at the trial, pursuant to section 179 of the Practice Act.

Issues

Whether the findings of the court were supported by the evidence.
Whether the trial court erred in conducting the trial without a jury.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the second assignment is answered by the fact that a jury was waived by the failure of the defendant to appear at the trial. (Practice Act, § 179.)”

“Judgment affirmed, with ten per cent, damages on the assessed value of the property.”

Synopsis

The failure of the defendant to appear on the trial of an action of replevin, when the cause is called, is a waiver of a jury, under the one hundred and seventy-ninth section of the Practice Act.

Field, J., delivered the opinion of the Court Terry, C. J., and Burnett, J., concurring.

The plaintiff had judgment, and the defendant appealed, and assigns as error; first, that the findings of the Court are unsupported by the evidence j and, second, that the cause was tried without a jury. The first assignment is abandoned in the brief of appellant; and the second assignment is answered by the fact that a jury was waived by the failure of the defendant to appear at the trial. (Practice Act, § 179.)

Judgment affirmed, with ten per cent, damages on the assessed value of the property.

Waltham v. Carson

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