Haight v. Green

California Supreme Court Jul 1, 1861Published

Before: Baldwin, Upon

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Holding. The court affirmed the judgment, holding that the complaint was sufficient, the stipulation established a tenancy, and the trial court's refusal to set aside the judgment due to attorney absence was not an abuse of discretion.

Issues

Whether the complaint was sufficient to state a cause of action for trespass.
Whether the stipulation was sufficient to establish a tenancy.
Whether the trial court's refusal to set aside a judgment due to the absence of an attorney is subject to reversal.

Disposition. Affirmed; Rehearing denied

Quotations verified verbatim against the opinion

“The judgment is affirmed. We think the complaint sufficient within the rules laid down in Payne and Dewey v. Treadwell”

“The stipulation prima facie was sufficient to maintain the action.”

“The discretion of the Court cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attorney at the time of the trial.”

Synopsis

The complaint in this case—ejectment—is sufficient within the rules laid down in Payne Dewey y. Treadwell (16 Cal. 220).

Under our statute, an executor may maintain an action for trespass committed upon the real estate of Ms testator in Ms lifetime.

In ejectment, plaintiff, after introducing his letters testamentary and proving the monthly value of the premises, offered in evidence a stipulation in these words: “ It is admitted that the plaintiff’s testator, Hetherington, was the owner of the premises prior to defendant’s entry; „ that defendant entered under him, and now claimed the premises as her property, and is in possession. The defendant does not design in this stipulation to admit a tenancy at any time; ” and rested: Held, that the stipulation was, prima facie, sufficient to maintain the action; because its effect is to admit title in Hetherington before defendant’s entry; that defendant entered under him, and afterwards claimed the premises in contravention of the tenancy.

Held, further, that the latter clause of the stipulation, that it was not designed “to admit a tenancy,” cannot have the effect of excluding the legal conclusion of “ tenancy,” resulting from the admission of specific facts.

Where a case in the Twelfth District was set for trial on a particular day, with the knowledge and consent of defendant’s attorney, and he then, two or three days before the day of trial, goes into Alameda county to try another cause there, without making any arrangement in respect to the first case, in which on the day fixed plaintiff had judgment—no one appearing for defendant, except to state the fact of the attorney’s absence, and to ask a postponement, which was denied : Held, that this Court will not review the action of the Court below in refusing to set aside the judgment because of the absence of said attorney.

Opinion — Baldwin

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

The judgment is affirmed. We think the complaint sufficient within the rules laid down in Payne and Dewey v. Treadwell (16 Cal. 220). The point that the executor could not sue for damages for the trespass, is answered by the statute. (Woods’ Digest, 411, secs. 195, 196.)

2. The stipulation prima facie was sufficient to maintain the action. The effect of it is to admit that the title was in Hetherington before the entry of defendant; that the defendant entered under him; and that she afterwards set up claim to the premises. The effect of these facts, if they had been proved, would be to show title in Hetherington, entry by his consent, and a holding in contravention of the tenancy. It is true that the stipulation adds to the admission of these facts that it is not designed to admit a tenancy; but such is the legal effect of the facts expressly admitted; and the qualifying terms have no effect of excluding the legal conclusions resulting from the admission of specific facts.

3. The discretion of the Court cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attorney at the time of the trial.

Judgment affirmed.

Opinion — Uponbaldwin

A petition for rehearing was filed, upon which Baldwin, J. delivered the opinion of the Court —Cope, J. concurring.

Rehearing denied. It is scarcely necessary to notice the hyper-criticism of the petition upon the language of the opinion—“ the discretion of the Court below cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attorney at the time of trial.” This language was not designed to assert the doctrine that this Court did not possess the power to review the action of the Court below on such applications, but merely that the facts of this case did not warrant such interference. The meaning of the statement is, that this Court cannot, in consistency with the rules of law in such cases, interpose—not because we have no jurisdiction of such matters, but because the matter invoked is improper, and therefore not warranted by law, under the facts of the case. To hold that an attorney can go off when he knows his case is set for a particular day, to try a case in another and distant Court, without making some arrangement in respect to the first case, or for having it attended to, and then claim to set aside a judgment obtained against him in the first suit, because of his absence, would lead to consequences too apparent to require illustration.

Haight v. Green

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Synopsis

Opinion — Baldwin

Opinion — Uponbaldwin

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