Kerns v. Dean

By the COURT. This action depends in the main on the same facts as Kerns v. McKean, 65 Cal. 411, 4 Pac. 404. No defense of the statute of limitations, or of another action pending between the same parties for the same cause, is here set up. The points involved herein are passed on in Kerns v. McKean, and determined adversely to the defendant in this cause.

The judgment is reversed, and the cause is remanded for a new trial.

THORNTON, J. I dissent. In this cause a judgment was rendered in Department 2, and a rehearing was granted on a claim preferred by defendant that the cause should have been, in case judgment was reversed (as it was), remanded for a new trial. The defendant, to sustain his contention, urged that the facts were not properly found, and that on another trial he could prove such a state of facts as would demonstrate that the judgment should be in his favor. The appeal herein is on the judgment-roll alone. There is no statement or bill of exception and no facts before us, save such as are contained in the findings of fact. All the material issues were found upon, and the facts as found warranted a judgment for plaintiff as ordered by the department.

It is urged to sustain defendant’s contention that, inasmuch as judgment passed for defendant, he could not move for a new trial. But if he was aggrieved by any finding of fact, he was entitled to move. Such is the language of the statute in regard to motions for new trials. By section 657, Code of Civil Procedure, it is enacted that “the former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved,” etc. If the facts found, or any of them, on a material issue are not found in accordance with the evidence, is not the party aggrieved whether judgment is entered for him or not? We cannot see that he is not. In fact, that in such ease he is aggrieved is manifest from the sixth subdivision of section 657, in which is enumerated as one of the causes for which a new trial may be granted, “insufficiency of the evidence to justify the verdict or other decision.” The causes for which a new trial will be [462]