Bell v. Marsh

Paterson, J. This is an appeal from an order granting the plaintiff a new trial.

The action was upon a promissory note. The answer denied that the sum named in the complaint, or any other sum, was due or unpaid on the note, and for a second defense, and by way of counterclaim, averred that defendant was induced to execute and deliver the note by certain false and fraudulent representations. Defendant asked for affirmative relief. The case was tried before,a jury upon special issues framed and submitted by the court, and the verdict was rendered and filed on the seventh day of May, 1887.

All of the issues raised by the pleadings were submitted to the jury.

The plaintiff objected to the entry of the verdict or its-adoption by the court, upon the ground that in certain specified particulars the findings were not justified by the evidence. The court took and held the matter under advisement until the first day of February, 1888, and then adopted the findings of the jury as the findings of the court, and entered judgment thereon that the plaintiff take nothing, and that the defendant recover [414]his costs. Afterward, on the tenth day of February, 1888, the plaintiff filed and served notice of his intention to move for a new trial, and on this notice, and a statement of the case subsequently filed, the new trial was granted.

The only question presented here for decision is, Was the notice of intention to move for a new trial filed and served within proper time?

Section 656 of the Code of Civil Procedure provides that “ a new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees”; and section 659 of the Code of Civil Procedure provides that “ the party intending to move for a new trial must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention,” etc.

These two sections of the code must be read together. No proceedings for a new trial can be had until “after the trial and decision by a jury or court.” In equity cases the findings of the jury are merely advisory. A case has not been tried until all the issues have been disposed of, and there has been no decision until the court has passed upon the facts, and drawn its conclusions of law therefrom. And so it has been held that in equity cases the time to give the notice does not begin to run until the court has either adopted or rejected the findings of the jury. (Bates v. Gage, 49 Cal. 126; Warring v. Freear, 64 Cal. 54.) The case at bar was treated by the court and by the parties in all respects as an action in equity; whether properly or improperly so treated it is unnecessary -now to inquire. To hold that the time to give the notice of intention begins to run from the rendition of the special verdict would necessarily put each party to the trouble, in the protection of his rights, of preparing and prosecuting motions for a new trial be