Hess v. Winder, Cal., Judgment, Law, casemine.com

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Van Clief & Gear, for Appellants, argued that to recover in the action, the plaintiffs must have been in possession of that part of the ground on which the defendants entered; and cited Frost v. Duncan, 19 Barb. 560; Budd v. Bingham, 18 Barb. 494; and Bigelow v. Gove, 7 Cal. 133; and that as no custom or mining regulations were offered in evidence which extended plaintiffs' possession beyond their actual occupancy, they could not recover, because they had never placed any monnments or marks on their boundary lines where the same included the ground worked out by defendants; and cited English v. Johnson, 17 Cal. 115. Creed Haymond and J. A. Johnson, for Respondents, argued that the evidence in regard to actual possession of plaintiffs was sufficient to warrant the verdict, and that under the rule that where theevidence was conflicting, the Court would not grant a new trial on the ground that the evidence did not justify the verdict, the order denying a new trial should be affirmed.

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JOSEPH HESS et als. v. EDWARD WINDER et als.[1]

They also argued that the entry under the Sheriff's deed was sufficient to give plaintiffs constructive possession of the whole claim; and cited Attwood v. Fricot, 17 Cal. 43.

JUDGES: Currey, C. J. Shafter, J., and Sawyer, J., dissenting.

OPINION

CURREY, Judge

By the Court, Currey, C. J., on petition for rehearing:

This case was passed upon by the Court at the last January term, and the judgment was reversed and a new trial ordered. Upon application, a rehearing was granted, and since then the cause has been re-argued by counsel for the respective parties.

It is objected, on behalf of respondents, that the Sheriff's deed referred to in the opinion of the Court heretofore delivered was not properly a part of the record in the case. It was not embodied in the statement settled and filed on the motions for a new trial, but it is annexed thereto by the appellants, accompanied by a certificate of the Judge who tried the cause and passed upon the motion for a new trial, as the Sheriff's deed to Charles Canny referred to in his opinion denying the motion for a new trial; which deed, he says, was before him on such motion, but was not referred to in the argument.

The statute provides that on the argument of a motion for a new trial, reference may be made to the pleadings, deposition and documentary evidence on file, and the minutes of the Court, as well as to the statement. (Pr. Act, sec. 195.) In the statement, reference is made to the Sheriff's deed, though it is not referred to as a part of the statement. In the opinion of the Judge denying the motion for a new trial, he refers to it in direct terms as evidence of the plaintiff's right to recover. It appears therefore that the deed constituted a part of the evidence upon which the cause was tried, and upon which the Court acted on the hearing of the motion for a new trial. We are of the opinion it is properly in the transcript of the record.

We have reexamined the case upon its own merits, and see no reason for changing the opinion already delivered.

The judgment must be and is hereby reversed, and a new trial ordered.

Hess v. Winder

JOSEPH HESS et als. v. EDWARD WINDER et als.[1]

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