Fox v. Hale & Norcross Silver Mining Co.

Van Fleet, J. On a former appeal herein (Fox v. Hale etc. Co., 108 Cal. 369, where the purposes and history of the action are fully stated) the cause was remanded to the superior court, with these directions:

“The judgment appealed from is set aside, and the superior court is directed to enter a judgment as of the date of its former judgment against Alvinza Hayward and H. M. Levy, for the sum of two hundred and ten thousand one hundred and ninety-seven dollars and fifty cents, with interest from that date, upon the issue presented by the claim for having paid an excessive price for milling the ore in the Mexican and Nevada mills; and upon that issue the order denying a new trial as to these defendants is affirmed. As to the other appellants, except the Nevada Mill and Mining Company, the order denying a new trial as to this issue is reversed, and a new trial thereon ordered. Upon the issue presented by the claim for damages sustained by reason of the imperfect and fraudulent milling, the order denying a new trial is set aside as to all the appellants, and the court is directed upon the evidence already taken in the case, and such other evidence as may be presented by either party, to make findings in accordance with the views hereinbefore expressed.” Then follow some specific suggestions as to particular facts to be found, not pertinent to be here noticed.

Upon the going down of the remittitur upon that appeal the superior court, on motion of the respondent' and against the objection of the appellants, immediately, and without awaiting the determination of the issues as to which a new trial had been so granted by this court, and before the same had been disposed of, rendered and had entered therein a judgment against the defendants Alvinza Hayward and H. M. Levy, upon the issue as to which the order denying them a new-trial had been affirmed, for said sum of two hundred and ten thousand one hundred and ninety-seven dollars and fifty cents, with interest, etc., and making reservation of the other issues as to which a new trial had been [571]granted, substantially in the language of the judgment of this court above recited.

From this judgment the defendants Hayward and Levy now appeal.

The main contention of appellants, and the only point we find it necessary to notice, is that the judgment as entered was unauthorized by law or the directions of this court; that there can be but one final judgment in a case, and, as the judgment herein finally determines the rights of the parties as to one of the issues only, leaving and reserving others to be thereafter tried, it is premature and contrary to the course of law.