Cahill v. Baird

SMITH, C. This is an appeal by the defendant from an order denying her motion for a new trial. The suit was brought to recover the sum of $1,500 alleged to be due to the plaintiff’s assignor, of which amount the principal item was a charge of $1,000 for services in a suit brought against the defendant here by her daughter, Mrs. Baldwin, to recover [62]stock transferred by her to her mother. The jury found for the plaintiff in the sum of $925, for which judgment was entered. The grounds urged for reversal are: Misconduct of the jury, the specific form of the objection being that the assent of the jurors, or of one or more of them, was induced “by a resort to the determination of chance”; remarks made by the judge in the course of the trial claimed by the appellant to have evinced a prejudgment of the case, and to have prejudiced the jury; the exclusion of certain testimony; and error in instructing and failing to instruct the jury.

1. To the first point the preliminary objection is made that the affidavits relied on are not incorporated in a bill of exceptions, as required by rule 29 (64 Pac. xii) of this court. But, under the view we take of the case, it will be unnecessary to consider this point. Objection is also made to the statement on the ground that it is stipulated that “it does not contain all the evidence.” But in view of the stipulation of the attorneys that “the statement is correct,” and of the certificate of the judge that it is “settled and allowed,” this is to be commended, rather than complained of, since it is to be inferred that only so much of the evidence has been inserted as was necessary to explain the grounds specified in the notice: Code Civ. Proc., sec. 659, subd. 3; Adams v. Lambard, 80 Cal. 436, 437, 22 Pac. 180.

2. As to the first of the three remaining points of error assigned, we find nothing objectionable in what was said by the judge. All except one of the instances of supposed injurious remarks are merely rulings of the court on the admission and exclusion of evidence, couched in appropriate and unobjectionable terms. The remaining instance was a question to the attorneys as to a point of law suggested by the evidence offered, and was not only altogether appropriate, but could have suggested nothing to the jury that was not favorable to appellant.

3. With regard to the third point, we do not understand— as stated in appellant’s brief—that the court refuséd “to allow defendant to introduce any testimony as to former charges made by Mr. Hurd,” plaintiff’s assignor, etc. The actual ruling was to exclude the judgment-roll in the former case of Baird v. Baird (in which defendant as trustee was a party), and, as this does not appear in the statement, we cannot determine whether it was admissible, or, if admissible,