Chabot v. Tucker

Temple, J., delivered the opinion of the Court:

The statement on motion for a new trial was settled on the 13th day of September, A. D. 1867, and the motion was granted on the 28th of December following. We are not prepared to say that there was such laches in prosecuting this motion as will warrant our interference with the discretion which, in such cases, is properly exercised by the Court below. This Court cannot possibly be as well advised of the circumstances which may excuse delay, and it is only a clear abuse of that discretion which would justify a reversal of the case on that ground.

And, besides, if we can regard the statement on appeal by which this laches is supposed to .be shown, the motion seems to have been made in proper time, and for aught that appears, respondent’s counsel could have had it disposed of as soon as it was reached. Having made his motion, appellant was not compelled to argue it, and under the rules of that Court, which are not in the record, his absence may have had the effect only to waive his right to an argument. The action of the Court in this case favors that hypothesis, and the case seems to have been postponed, not because of the absence of respondent’s counsel, but because appellant declined to argue the case in his absence. If, under the rules of that Court, the motion was properly considered as having been made and submitted, the fact that counsel did not choose to make an argument was no waiver of the motion. (Carder v. Baxter, 28 Cal. 99.)

The proper subjects of review in this Court are the rulings and decisions of the District Court, but not the reasons given for such rulings. The fact that the statute requires the Judge to state in writing the grounds upon which the [436]motion was granted or denied does not make it incumbent on the prevailing party to defend the logic of the Judge. It is enough if the decision be correct.

The action was brought on a promissory note. The answer avers a discharge in insolvency. On the trial no issue was made upon the note or discharge, but the plaintiff introduced evidence of a promise made after the discharge, and upon such evidence obtained judgment, which was set aside by the order appealed from.

The answer sets up a complete defense to the cause of action stated in the complaint. It is admitted to be true in every respect, and yet the plaintiff recovered judgment really upon a contract not alluded to in any of the pleadings. No part of the evidence tended to support or contradict any of the allegations of the pleadings of either party; nor was it at all pertinent to any issue made by the pleadings.