Schwartz v. De Wit (1856) · DecisionDepot

Schwartz v. De Wit

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Nov 18, 1856 No. No. 1192Published

Before: Heydenfeldt, Murray, Terry

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Holding. The court held that a nonsuit was erroneous because the defendant failed to answer the complaint, justifying the lower court's decision to set aside the nonsuit and order a new trial.

Issues

Whether a nonsuit is erroneous when the defendant fails to answer the complaint.
Whether an appeal is properly taken when a new trial has been ordered.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The plaintiff was entitled to judgment against- the defendant, who failed to answer, and this makes the nonsuit erroneous.”

“The court below was certainly right in correcting this error by setting aside the nonsuit and ordering a new trial.”

Synopsis

APPEAL from Twelfth Judicial District, San Francisco County.

HEYDENFELDT, J. — The plaintiff was entitled to judgment against- the defendant, who failed to answer, and this makes the nonsuit erroneous. The court below was certainly right in correcting this error by setting aside the nonsuit and ordering a new trial. In another trial the plaintiff may obtain in the district court that which he seeks, and therefore this appeal is not properly taken.

Order affirmed.

We concur: Murray, C. J.; Terry, J.

Schwartz v. De Wit

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