McCormick v. Sheridan

PATERSON, J. On October 23, 1888, the judgment of the court below was affirmed herein, upon an opinion written by [36]Commissioner Belcher, concurred in by Commissioners Foote and Hayne, and adopted by this court: McCormick v. Sheridan, 77 Cal. 253, 19 Pac. 419. On November 23d a petition for a rehearing, signed, “Shafter, Parker & Waterman, Attorneys” for appellant, was filed herein. Upon reading the said petition we were surprised to find statements therein which were intended apparently to reflect on the good faith and diligence of the commissioner who had written the opinion. Among other things, the author of the petition said: “The decision of the honorable commissioner, affirmed by this court, is wholly contrary to law and the evidence shown in the record here. How or why the honorable commissioner should have so effectually and substantially ignored and disregarded the uncontradicted testimony of unimpeached witnesses given at the trial, and shown in the transcript, we do not know, nor can we conjecture; that he has done so is evident.....From the opinion upon which the decision is based, it seems to us that neither the transcript nor our briefs could have ever fallen under the observation or examination of the honorable commissioner.....All of which, from the honorable commissioner’s view of the law and the facts, must have been abandoned by McCormick, and were a fair prize to the first-comer. Yet Sheridan, more conscientious, perhaps, evidently had some doubts.....There is not a scintilla of testimony to the contrary, and yet the honorable commissioner assumes that McCormick’s residence and dwelling was on section 18. For what reason? we ask.....The honorable commissioner, in very euphuistic language, says that ‘on the 5th of December, some time after sundown, defendant entered upon the disputed quarter section.’ .... A more disingenuous and misleading statement of the evidence, it seems to us, could not well be made than this. It is substantially, and for all the purposes of this investigation, untrue, and utterly unwarranted by the facts shown in the testimony.....We forbear further comment upon what seems to us to be a remarkable perversion of law applied to conceded facts of record. We ask of this honorable court a fair examination of the record testimony.....With all due respect to the honorable commissioner, and to this honorable court, the decision herein, [37]