Cockrill v. Hall

California Supreme Court May 19, 1888 No. No. 9946Published

Before: Foote

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Holding. The court affirmed the judgment for the defendant, finding no prejudicial error in the trial court's jury instructions, evidentiary rulings, or procedural handling of the motion for a new trial.

Issues

Whether the failure to include a notice of intention to move for a new trial in the record precludes appellate review when the respondent stipulated to the statement's correctness.
Whether a notice of appeal signed by one of the attorneys of record is valid without formal substitution.
Whether a general exception to an entire oral charge is sufficient for appellate review.
Whether promissory notes admitted as evidence but attached to a deposition may be taken by the jury during deliberations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Exceptions to the oral charge ought to point out the specific portions excepted to and be made at the time”

“We think that the notes were not parts of the deposition within the meaning of section 612 of the Code of Civil Procedure.”

“No prejudicial error appearing in the record, we advise that the judgment and order be affirmed.”

Synopsis

Appeal—Order Refusing New Trial—Omission of Notice of Intention from Record — Stipulation to Correctness of Statement — Presumption of Giving Notice.—When the record on appeal from an order refusing a new trial contains no notice of intention to move for the new trial, and the statement does not recite that such notice was given, the fact that the respondent, without objection, stipulated to the correctness of the statement, and that the motion appears to have been decided on its merits, raises the presumption either that a proper notice of intention was given, or that it was waived.

Id.—Several Attorneys of Record — Firm of Attorneys—Notice of Appeal may be Signed by One. •— Where an appellant has two attorneys of record in the lower court, or a firm of attorneys, either one of the two, or either member of the firm, may sign the notice of appeal.

Instructions — Exception must be Specific. —An exception to the oral instructions to the jury will not he reviewed unless specifically directed to some particular portion thereof. An exception “to each and every part, and to the whole,” of the instructions, is too general.

Jury — Taking Documents to Jury-room — Promissory Notes Referred TO IN Deposition. — Promissory notes offered in evidence, after being identified and proved by testimony contained in a deposition, are not parts of the deposition, within the meaning of section 612 of the Oode of Civil Procedure, prohibiting the jury from taking depositions with them when retiring for deliberation.

Evidence — Impeachment of Witness.—A witness cannot be discredited by asking him if he had not been impeached as a witness upon the trial of another action.

Id. — Reinstruotions to Jury — Refusal of Particular Instruction. — After retiring for deliberation, the jury returned into court and asked instructions upon a particular point. The court directed them to follow the instructions already given. The plaintiff thereupon requested the court to read the particular instruction covering the matter. The court refused so to do, but expressed a willingness to read the entire instructions if the jury so desired. The foreman of the jury thereupon stated that they had no such desire. Held, that the failure to read the particular instruction was not error.

Foote, C. This is an action based upon alleged deceit practiced upon the plaintiff, to her damage, by the defendant, and is brought under the provisions of sections 1709 and 1710 of the Civil Code.

It is alleged in the complaint that the defendant had executed, for value received, a promissory note to the plaintiff, in renewal of another note, and that it was about to become barred by the statute of limitations; that, pretending he wanted to have a calculation made, and renew the note with security thereon for the sum of money due, the defendant got possession of it from the plaintiff, not intending to renew it, and that while in his possession under the false promise thus made, the note became barred by the statute of limitations, and the defendant refused, upon demand made, to pay it, although solvent at that time.

The defendant denied that he practiced any deceit, claimed that the note was already barred by the statute of limitations when he obtained possession of it, and that it was not valid against him, as he had already overpaid what he owed the plaintiff before he made and executed it, which he claimed to have done under a misapprehension of his rights.

[194]The case was tried before a jury, who returned a verdict for the defendant; from the judgment “thereupon given and made, and an order denying a new trial, the plaintiff has appealed.

The record contains no notice of intention to move for a new trial, nor does the statement on that motion recite that any such notice was given.

But the defendant's attorney not only accepted the draught of the statement without any opposition, and at no time objected in the court below to the consideration or settlement of the statement on the ground that proper notice of intention to move for a new trial had not been given, but also signed the statement stipulating, in the same manner as did the attorneys for the plaintiff, that it was “a full and correct statement in said cause.”

The court who heard the motion does not appear to have proceeded upon the idea that there was any supposed absence of a proper notice of intention, but seems to have determined the motion upon the questions presented by it. Under all these circumstances, it is hardly possible but that there was either a proper notice of intention given, or that, the defendant or his attorney had waived it, and agreed to the hearing of the motion upon its merits. (Girdner v. Beswick, 69 Cal. 119.)

Cockrill v. Hall

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