Carpentier v. Gardiner

California Supreme Court Jul 1, 1865Published

Before: Sawyer

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Holding. The court held that a judge cannot modify material findings of fact after the term has adjourned and judgment has been entered, and that the judgment must be reversed for a new trial where findings regarding damages are unsupported by evidence and cannot be apportioned.

Issues

Whether a will is a conveyance admissible under the Act concerning conveyances.
Whether a judge may modify material findings of fact after the adjournment of the term.
Whether the evidence supported the findings regarding the value of rents and profits.
Whether the court may apportion damages when findings are unsupported by evidence.

Disposition. Affirmed on condition of remittitur; otherwise reversed and remanded for new trial.

Quotations verified verbatim against the opinion

“The Judge was not authorized to change them in material particulars after the entry of judgment upon the findings, and the adjournment of the term.”

“The finding is, that the land, without the improvements, is worth fifty cents per acre, and with them two dollars per acre—the highest sum named by the latter witness. In this case the evidence was overwhelming against the finding”

Synopsis

Will as Evidence.—A will is not a conveyance within the provisions of the Act concerning conveyances, which can he road in evidence upon the certificate of proof, or of acknowledgment by a Notary.

Immaterial Error.—A judgmentwill not he reversed for an error which is immaterial.

Change of Findings of Facts.—A Judge cannot change his findings of facts in a material particular after the entry of judgment on the findings and the adjournment of the term.

Remission of Damages, or New Trial,—If the findings are not sustained by the evidence on a question of damages, the Court may require the plaintiff to remit the damages, or submit to a new trial.

Ouster of a Co-tenant.—A denial of the title of a co-tenant by a tenant in common in the possession of land owned by the two as tenants in common, is evidence of an ouster of the co-tenant.

Set-off of Value of Improvements against Damages.—The Court cannot, in an action to recover lands, set off the value of improvements against the damages, if the defendant does not desire it.

Vacating a Finding by Appellate Court.—If, in an action to recover lands, the Court finds damages, but gives judgment for possession without damages, and the plaintiff appeals from that part of the judgment refusing damages, and the defendant appeals from the order denying a new trial, the appellate Court may vacate the findings as to the damages if not justified by the evidence.

Conflict of Testimony.—If, in an action to recover lands, the testimony of five witnesses who know the premises, on a question of damages, is contradicted by one who testifies with respect to a much larger tract, including the premises in dispute, but without knowing thoir location, it is not such a conflict of testimony as will preclude the appellate Court from setting aside a finding in accordance with the testimony of the one.

Finding of Facts.—The appellate Court will not find the facts upon the evidence in the record.

Release of Claim for Damages in Supreme Court.—If the Court below finds damages in an action to recover hands, but gives judgment for possession only, and the appellate Court determines that the finding is not sustained by the evidence, the judgment, on an appeal by both parties, will be affirmed, if the plaintiff releases his claim for damages.

Cases Affirmed.—Carpentier y. Webster, 27 Cal. 524, and Carpentier y. Mitchell, post, affirmed.

By the Court, Sawyer, J. Some of the points relied on in this case have been already determined in the cases of Carpentier v. Webster, 27 Cal. 524, Carpentier v. Mendenhall, 28 Cal. 684, and Carpentier v. Mitchell, post.

Admission of a will in evidence.

The will of Bernal was improperly admitted in evidence without further proof of its execution. Admitting that its operation was to convey the title, a will is not a conveyance within the provisions of the Act concerning conveyances, which can be read in evidence upon the certificate of proof by a Hotary. A will is excluded in express terms by the thirty-sixth section of the Act. But the error is immaterial; for it was admitted on the trial that the devisees of the will, under whom the plaintiff claims', were the heirs at law of the testator.

[163] Change of findings of fact after adjournment of term.

The findings, as they were originally filed, must be regarded as the findings in the case. The Judge was not authorized to change them in material particulars after the entry of judgment upon the findings, and the adjournment of the term. Defects might be supplied at the proper time and in the proper mode, in pursuance of the Act of 1861. In denying a new trial, the Judge, if he thought the evidence insufficient to justify the findings as to the amount of damages, might have required the plaintiff to remit the excess as a condition of the refusal, and this, rather than a modification of the findings, would have been the proper practice.

The point, that there can be an ouster by a tenant in common of a part of the entire tract held in common, was settled in Carpentier v. Webster. This point being determined, the evidence in our judgment is sufficient to sustain the finding that there was an ouster. The overwhelming weight of authorities as to what acts are sufficient evidence to establish an adverse holding, from which an ouster may be inferred, sustains this conclusion.

The Court erred in the conclusion that the value of the improvements should be set off against the damages, for the reason, if for no other, that the defendant did not ask it, but, on the contrary, protested against it. Neither party desired it. The result, however, was, that the plaintiff only recovered the possession without damages.

Findings not warranted by the evidence.

Carpentier v. Gardiner

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