Duff v. Duff
Before: Harrison
Synopsis
Pleading—Amendment to Answer.—The court may properly refuse leave to file an amended answer which does not present any new issue, or any defense to the action not embraced in the original answer.
New Trial—Single Issue.—A party may move for a new trial upon a single issue, and if the motion be made for a new trial of the entire action, the court may grant it in part and deny in part, leaving its former determination upon a portion of the issues to remain; and where an order limiting the scope of a new trial is affirmed, its correctness in the individual case is established.
Id.—Enforcement of Trust—Issue as to Valuable Consideration— Ownership—Conclusion of Law—Construction of Order.—In an action to enforce a trust, where a new trial was ordered as to the issue whether a valuable consideration was paid for certain property conveyed by deed to one of the defendants, and whether he was the owner thereof, this latter phrase is not to he regarded as an additional issue of fact to be tried anew by the court, but is used by the court as an equivalent of the conclusion of law to be drawn from the finding of fact on the issue of payment of a valuable consideration.
Id.—Irrelevant Evidence—Adverse Possession.—Evidence offered upon the trial of such issue not relevant to the issue of payment of.a valuable consideration, and not tending to establish any ownership in the defendant, and an offer to prove title in him by adverse possession of the property, which was found against him upon the first trial, is properly excluded.
Id.—Admission of Trust.—Testimony that the defendant had admitted that he held the property in trust is properly received, as tending to show that he did not pay a valuable consideration for it.
Id.—Findings—Repetition.—After trial upon the issue of valuable consideration for which the new trial had been granted, the court in making its finding thereon may properly set forth the proceedings upon the former trial, and the subsequent order of the court granting ,a new trial, and to the findings that had been made upon the former trial, as modified by the order, add its own finding upon the issue tried by it.
Id.—Finding Upon Single Issue.—If the court had found only upon the single issue upon which the new trial was granted, the conclusion of law to be drawn and the judgment to be entered in the case would not depend upon such finding alone, but would find their support in the entire record, including the findings upon the former trial which were not set aside.
Id.—Support of Findings by Evidence—Adoption of Former Findings. Where the other findings are repeated upon the new trial, the objection that they were not supported by any evidence given at the last trial is not tenable, -where the court expressly states, that it adopts the facts found from the testimony introduced in the action at the former trial, as findings of fact, so fardas the same are applicable to the property involved in the new trial.
Harrison, J. Upon a former trial of this action the court rendered its decision in favor of the plaintiffs for a portion of the property involved, and in favor of the defendant for another portion. Both parties moved for a new trial, and the court below denied the motion of the defendant and granted that of the plaintiffs, limiting the new trial to the determination of a single issue. From these orders, and the judgment against them, the defendants appealed, and this court affirmed the orders and judgment appealed from. (87 Cal. 104.) When the cause again came on for trial in the court below, the defendant, Robert P. Duff, asked leave to file an [3]amended answer, which was refused by the court, and this ruling is now assigned as error. The answer which was presented, and which he asked leave to file, did not, however, present any new issue, or any defense to the action which was not embraced in the original answer, and the court did not err in denying his request to file it.
At the trial the court excluded certain evidence offered by the appellant, and it is now urged by him that under the order for a new trial he was at liberty to offer any evidence which would tend to establish his ownership of the property as to which the new trial was ordered; while, on the part of the respondents, it is claimed that the new trial was limited to ascertaining whether the appellant had paid a valuable consideration for this property. The closing part of the order by which the new trial was granted, as shown by the record before us, is as follows: “The motion of the plaintiffs is granted, and a new trial ordered as to the issue: Was there a valuable consideration paid for the property conveyed by deed to R. P. Duff in blocks 28 and 51, and is he the owner thereof?” It is claimed by the appellant that in the order itself the word “issue” is written “ issues,” and the original order has been produced in support of this claim, but, as we view the case, this variance is immaterial. The order itself is in the nature of a “speaking order,” inasmuch as it contains matter which is explanatory and illustrative of the mere direction which is given by it. The cause had been tried, and all of the issues of fact found in favor of the plaintiffs, except that the court found that the defendants had paid a valuable consideration for the lands described as being in blocks 28 and 51. Upon the decision thus made the defendants moved for a new trial, alleging as the grounds that the several findings against them were unsupported by the evidence; and, in the same order by which a new trial was granted to the plaintiffs as to blocks 28 and 51, the defendants’ motion for a new trial was denied, and this order was affirmed by this court. It was thus defi
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