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4. The defendant in action is

not entitled to a postponement of the trial on the ground that he had not received a full five days' notice of the time fixed for the trial, where he is present in court when the case is called and fails file any a ffidavit setting forth the reasons why he is unable to proceed, or why his witnesses were not present, or who they were, or what they would testify to if present.--Handy v. Handy, 31 Cal. App. 590, 161 Pac. 21.

8 595.

tive, if not waived, only with respect to the issue of compensation.—Vallejo & Northern R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.

3. Issues triable by court.-The rule is that, in cases of eminent domain all questions, except those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court.- San Joaquin & Kings River Canal & Irr. Co. v. Stevinson (Sup. Ct.), 26 Cal. App. 285, 147 Pac. 258.

4. This necessarily includes among the questions triable by the court without a jury the question whether the plaintiff's canal will unreasonably waste the water to be condemned, and the quantity necessary for the use, after allowing for unavoidable waste; also the question whether the water which the plaintiff already has acquired the right to take would be sufficient for its public use, if carried and distributed without unreasonable waste.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson (Sup. Ct.), 26 Cal. App. 285, 147 Pac. 258.

5. Issues triable by jury.—The right to a trial by jury in condemnation suits is limited to the issue of compensation, and all other issues are to be tried by the court, and if the court submits them to a jury, it is nevertheless required to make findings either by adopting the verdict thereon or by making findings in its own language.Vallejo & Northern R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.

3 594.

1. Bringing issues to trial-Construction of section.—Where the attorney knew long in advance that the cause was in fact set for trial for a certain date there is no necessity for giving any formal notice such as is contemplated in this section. It is the attorney's neglect if the client fails to receive timely notice.-Canty v. Pierce, 173 Cal. 205, 159' Pac. 582.

2. Where an action is transferred to another department of the court before the same judge, an order in that department placing the cause on the calendar for trial on a specified date is in effect a resetting of the cause for trial, and if made without the knowledge of an intervener, a further trial can not be had in his absence without giving him the five days' notice required for section 594 of the Code of Civil Procedure. -Hagenkamp v. Equitable Life Assur, Co., 29 Cal. App. 713, 156 Pac. 520.

3. The provision of section 594 of the Code of Civil Procedure that either party may bring an issue to trial provided that if the issue tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial, has reference only to proceedings taken against a party in his absence, and has no application to a case in which both parties are represented and present when the case is called for trial.Handy v. Handy, 31 Cal. App. 590, 161 Pac. 21.

MOTION TO POSTPONE. 1. Absence of defendant.

2. To procure evidence. 3, 4. Of insanity of accused.

1. Absence of defendant.-It was not error to refuse to postpone the trial because of absence of a defendant through illness when no relief was asked against such defendant and counsel had stated to the court that the purpose of her being present was to give evidence upon the question of fraud, which was not before the court on the issues raised by the pleadings. -Greenlee v. Los Angeles Trust ,etc. Bank, 171 Cal. 371, 153 Pac. 383.

2. To procure evidence.-No abuse of discretion is committed in denying the motion of the defendant for a continuance for the purpose of procuring evidence, where the affidavits on which the motion is based do not state facts which furnish any definite and satisfactory assurance that the witnesses named therein could or would be procured at a later time if the continuance were granted.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

3. -of insanity of accused.--An application for the postponement of a criminal trial to enable the defendant to obtain evidence relating to his alleged insanity is properly denied, in the absence of any showing of the exercise of any diligence in searching for evidence, or the ability to procure it if the continuance were granted.-People v. Loomis, 170 Cal. 347, 149 Pac. 581.

4. The question as to whether or not the statements contained in the affidavit offered in support of the motion for a continuance are of such a character as to raise a doubt of the defendant's sanity at the time of trial, and to cause the court to suspend the proceedings and call a jury to determine the present sanity of the defendant, is a matter addressed to the discretion of the trial court, whose decision must be upheld in the absence of a showing that such discretion has been abused.--People v. Loomis, 170 Cal. 347, 149 Pac. 581.

8 607.

1. Reopening of case - Discretion of court.--It is within the discretion of a trial court to reopen a case after the close of the evidence.-Phenegar v. Paolini, 27 Cal. App. 381, 149 Pac. 1008.

faith.-Foster v. Young. 172 Cal. 317, 156 Pac. 476.

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$ 608.

1. Instructions.-A litigant is entitled to proper instructions bearing upon any legitimate legal inference which may be drawn from evidence given; he is not limited in this right to instructions addressed only to the positive evidence in the case. Thomas v. Visalia Elec. R. Co., 169 Cal. 658, 147 Pac. 972.

2. Argumentative instructions to a jury are not permissible and should never be given.--People v. Horn, 25 Cal. App. 583, 144 Pac. 641.

3. Either party has the right to have an instruction given to the jury based upon his theory of the case, if there is any evidence to support it.--Klamath Lumber Co. v. Co-operative Land & Trust Co., 25 Cal. App. 678, 145 Pac. 159.

4. That particular instructions omit matters presented in others is not error, for no one instruction can declare all the law.Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318, 147 Pac. 90.

5. Exceptions to instructions must be taken prior to the retirement of the jury for the consideration of the case or they will not be considered.-Miller v. Petrocelli, 236 Fed. 846.

$ 625.

1. Efeet of general verdict.--A plaint that the court reversed the requirements of this section (as it existed at the time of the trial) by requiring answers to the special issues whether the jury found a general verdict or not is immaterial, and the error harmless where the jury found a general verdict and also answered the special interrogatories.-Law V. Northern Assur. Co., 165 Cal. 394, 132 Pac. 590. 2.

Where a verdict is general in its terms, and consequently covers every issue in the case, it must be upheld if it finds support in the evidence adduced upon the whole case.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.

3. Framing interrogatories.-In framing special interrogatories the court in the interest of simplicity should prevent the possibility of long, argumentative and possibly irresponsive answers, and this may sometimes be done by framing the questions

that they may be answered "Yes" or "No."-Law v. Northern Assur. Co., 165 Cal. 394, 132 Pac. 590.

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$ 609.

1. Special instructions. It is not reversible error to refuse a requested instruction that is not applicable to the evidence or that presents an erroneous theory of the case. —Shelton v. Michael, 31 Cal. App. 328, 160 Pac. 578.

8 619.

1. Timely objection to general verdict.An objection to the general form of a verdict in a case, where there are different counts, should be made when the verdict is rendered.--Schudel v. Helbing, 26 Cal. App. 410, 147 Pac. 84.

§ 624.

1. Special findings Construction. Where in an action by an attorney to recover for services rendered to the defendant in and about the prosecution of a certain action, it is found in answer to a special interrogatory submitted to the jury, that the plaintiff was to charge a reasonable fee only and that it should be left to the defendant to fix the amount thereof, an answer to a further interrogatory that the defendant in fixing such fee did not "act in good faith, and upon and after full consideration, and advice of those persons whom he had a right to believe and expect were qualified to advise him in said matter," is not subject to the interpretation that the defendant in fixing the fee did not act in good faith, in that he did not seek the counsel of qualified advisers, but is to be interpreted as an unqualified finding that in fixing the fee the defendant acted in bad

8 632.

DECISION ON TRIAL BY COURT. 1. As to necessity for. 2. As to what constitutes. 3. Inconsistency between formal and oral

findings, effect of. 1. As to necessity for.-Until the decision has been entered on the minutes, or reduced to writing by the judge and signed by him, and filed with the clerk, the case has not been tried in legal intent.-San Joaquin & Kings River Canal & Irr, Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

2. As to what constitutes.—The opinion of the court, expressed from the bench in deciding a case, is no part of the decision. In the formal findings of fact and conclusions of law are to be found the only legal expression of the views of the court.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

3. Inconsistency between formal and oral findings, effect of.—Where the court some six weeks after the submission of the case delivered an opinion wherein he summarized the important facts, and the formal findings, signed two or three months later, did not in all respects accord with the views of the first opinion, the formal findings can not be subordinated or controlled by the former opinion. No antecedent expression of the judge, whether casual or cast in the form of an opinion, can in any way restrict his absolute power to declare his final conclusion in the only manner authorized by law, which is under this and the following section.-Scholle v. Finnell, 173 Cal. 372, 159 Pac. 1179.

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$ 633

that count.—Luchini v. Roux, 29 Cal. App.

755, 157 Pac. 554. FINDINGS AND CONCLUSIONS.

10. In findings of fact the omission to 1. As to responsibility for findings.

find in expressed terms that the defendant 2-5. Construction of findings.

was negligent will not defeat the judgment, 6-8. Necessity for findings.

if the facts found show an omission of duty 9-12. Where no finding on material issue,

with a resultant injury.-Cooley v. Brunseffect.

wig Drug Co., 30 Cal. App. 58, 157 Pac. 13. As to responsibility for findings.-The

11.
If

any material issue is left court is itself responsible for the findings.

found, it is ground for reversal of judg(Shaw, J., concurring.) Estate of Friedman,

ment.-Math v. Crescent Hill Gold Mines 171 Cal. 431, 153 Pac. 918.

Co., 31 Cal. App. 636, 161 Pac. 140. 2. Construction of findings. — Findings

12.

In an action for services performed "that all of the denials and allegations con

in working in a mine, where the defendant tained in the answer of the defendants to

files a cross-complaint in which it is alsaid third amended complaint are, and that

leged that the plaintiff is indebted to the each of them is, supported by the evidence

defendant for money loaned and for goods and true," is an unusual form of expression,

and merchandise furnished and delivered to but its meaning is clear and unequivocal

the plaintiff, at the latter's special instance and is equivalent to a finding that each al

and request, in a certain

sum, and

the legation of the complaint is untrue.-Fritz

plaintiff in his answer to the cross-comv. Mills, 170 Cal. 449, 150 Pac. 375.

plaint denies the indebtedness, and evidence 3. A finding that all of the allegations in

is admitted upon the issue, the failure to the answer are not true is not a finding that

make a finding upon the issue requires a reall of them are untrue, or that any particu

versal of the judgment.—Math v. Crescent lar one of them is untrue, as such finding

Hill Gold Mines Co., 31 Cal. App. 636, 161 does not negative the fact that some of them

Pac. 140. are true.--Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

8 634. 4. Where a finding is of the evidence and

WAIVING FINDINGS. not of the fact in issue, it will not aid the

1. Construction of section. judgment unless the evidentiary facts thus

2, 3. -Amendment of 1913. determined carry with them by necessary

4, 5. Failure to serve copy of prepared findimplication the ultimate fact which should

ings, effect. have been determined.-Nichols v. Wolf, 27 Cal. App. 1, 148 Pac. 799.

1. Construction of section.-Service of 5. Findings can not be detached from proposed findings pursuant to section 634 of each other and considered piecemeal. They the Code of Civil Procedure, as amended in must be considered and construed as a 1913, is not required in a case where no whole, and not merely according to their

direction is made that findings be prepared. numerical subdivisions.—Brown V. Fuller --Hoffman v, Rush Co., 27 Cal. App. 167, 149 & Co., 28 Cal. App. 676, 153 Pac. 960.

Pac. 177.
Necessity for Andings.-Where an ac-

2. -Amendment of 1913.---The amendtion is tried upon a stipulated statement of ment of 1913 has not changed the rule that facts, it is not necessary that specific find- a superior court judge presiding outside his ings be made upon the matters in issue.- own county has the power to settle and sign Stanwood v. Carson, 169 Cal. 640, 147 Pac. the findings in the county of his residence. 562.

-Weinstock-Nichols Co. V. Courtney, 26 7. The judgment itself controls and if Cal. App. 445, 147 Pac. 218. the findings support the judgment, the mere 3. The amendment to this section was absence or omission of a specific conclusion passed solely in the interests of parties liti. of law will not avail to defeat a judgment gant, to give them an opportunity to sugotherwise properly given. Indeed, it will gest to the

trial judge, before signing be held that the conclusion of law is at findings, certain matters they desired to once embraced and expressed in the man- have incorporated. The amendment was date of the judgment. - Takekawa v. Hole, not enacted for any public reason and the 170 Cal. 323, 149 Pac. 593.

provisions may be waived by a party liti8. Although the judge announces orally gant.--California Cent. Creameries Co. V. from the bench his conclusion as to the Crescent City L. W. & P. Co., 30 Cal. App. questions of use and necessity in condemna- 619, 159 Pac. 209. tion proceedings, this is in no legal sense 4. Failure to serve copy of prepared find. equivalent to findings which the law re- ings, effect.-A judgment is not void on its quires him to make and which are not made face by reason of the failure of the party until after the jury has rendered their ver- directed to prepare findings to serve a copy dict.-San Joaquin & Kings River Canal & of the proposed findings upon all other Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 parties at least five days before the findings Pac. 768.

are signed.-California Cent. Creameries Co. 9. Where no finding on material issue, v. Crescent City L. W. & P. Co., 30 Cal. App. effect.-Where the trial court finds in favor 619, 159 Pac. 209. of the defendant as to one of the counts 5. An order directing the preparation of in the complaint, he can not complain of the findings is not a part of the judgment-roll, absence of findings as to issues raised in and, therefore, an inspection thereof would

not disclose that such direction was given. -California Cent. Creameries Co. v. Crescent City Co., 30 Cal. App. 619, 159 Pac. 209.

8 645.

1. Objection to report, etc., of referee.Objections that the report, findings and conclusions of the referee are not sustained by the evidence, and that the report goes beyond the scope of the order of reference, should be presented to the trial court, and where not so urged, they can not be presented for the first time on appeal.-Clark, Wise & Co. v. Hauschildt, 28 Cal. App. 47, 151 Pac. 149.

8 638.

1. Referee, judge pro hac vice-Where the stipulation of the parties, in conformity with which an order of reference is made, authorizes that officer not only to take the evidence, but to report his "findings of fact and conclusions of law" thereon, with no provision either in the stipulation or the order for a

review by the court of his rulings on evidence or on matters of procedure, the reference is something more than the ordinary reference to a master in a suit in equity. It constitutes the referee a judge pro hac vice, with power as ample for the conduct of the trial and rulings on all questions arising therein, excepting only for entry of judgment, as if the cause were being tried by the court itself; and the report or determination of such an officer is not subject to be set aside by the court, except for a want of evidence to sustain his findings or manifest error in his conclusions of law.-United States v. United Surety Co., 226 Fed. 985.

2. A reference, by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration-a proceeding which is governed by special rules, is a submission of the controversy to a tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.-- United States v. United Surety Co., 226 Fed. 985.

$ 648.

1. Sufficiency of objection.—Where the defense of want of consideration rests upon the allegation of a conclusion of law, the objection thereto made after the trial of the case upon the merits will not be considered upon an appeal supported only by a record which does not show that such objection was interposed by demurrer or otherwise in the court below.–Rivera v. Cappa, 29 Cal. App. 497, 156 Pac. 1017.

2. An objection so general as not to call the court's attention to the particular aspect in which the question is claimed to be obnoxious will not be regarded as sufficient to entitle one to have the exception reviewed.-Aston v. Examiner Printing Co., 226 Fed. 496.

§ 649.

1. Excuse for not presenting in time.Upon an appeal taken from an order denying a motion to tax costs, the trial court is not justified in refusing to settle the bill of exceptions to be used on the appeal, on the ground that it was not presented in time, where no notice of the order denying the motion was given to the appellant, except by a letter mailed to counsel for appellant by counsel for the opposing party demanding payment of the costs.-East Side Canal & Irr. Co, v. Superior Court, 30 Cal. App. 528, 158 Pac. 773.

CHAPTER VII.

PROVISIONS RELATING TO TRIALS IN GENERAL.

Article I. Exceptions.

II. New trials.

$ 650.

ence of counsel in court during the arguBILL OF EXCEPTIONS.

ment of the motion.-Hughes Mfg. & Lum

ber Co. v. Elliott, 167 Cal. 494, 140 Pac, 17. 1, 2. As to preparation and settlement

2. The insufficiency of the evidence to generally.

sustain the findings can not be considered 3. Construction of section.

on appeal from an order denying a new 4, 5. Authentication and certification,

trial, where there is no particular specifica6-13. Delay in service of, effect.

tion in the bill of exceptions which points 14–17. Settlement of bill.

out the weakness of the testimony as to any 18–20. Record, contents of.

of the facts in issue.—Tingey V. Callahan 1. As to preparation and settlement gen

Construction Co., 28 Cal. App. 777, 154 erally.-Appellant is entitled to notice of

Pac. 28. entry of an order denying relief from a de- 3. Construction of section.-A sufficient fault judgment, and the failure to give such compliance with sections 650 and 659 of is not excused from the fact of the pres- the Code of Civil Procedure in preparing 12.

and presenting a statement of the case on waiver of the parties not served.—Title Ins. a motion for a new trial, is had where the & Trust Co. v. California Devel. Co., 171 moving party leaves his proposed statement Cal. 174, 152 Pac. 542. with the clerk and the adverse party there

An appeal taken by the heirs of a deafter likewise leaves his proposed amend

ceased incompetent from an order settling ments thereto, and the judge subsequently the final account of the guardian of his esreceives all of the papers, either from the tate will not be dismissed because of the clerk or from the judge in whose place he failure of the appellants to serve upon the presided at the trial, and thereupon in open administrator their proposed bill of excepcourt fixes a day for the settlement of the

tions, or a copy of the engrossed bill, or a statement in the presence of both counsel,

copy of the transcript on appeal.-Estate of notwithstanding the failure of the moving

Clanton, 171 Cal. 381, 153 Pac. 459. party to give the notice of intention of

13. Upon an appeal from an order denypresentation of the statement to the judge

ing a new trial, the objection can not be as provided by such sections.-Keating v.

raised for the first time that the bill of exKeating, 169 Cal. 754, 147 Pac. 974.

ceptions used on the hearing of the motion 4. Authentication and certification.

was not served within the time allowed by Where upon an appeal from an order deny

law, where the respondent proposed amending a motion for a new trial the notice of

ments to the bill, and raised no objection intention to move for a new trial has not

at the time of its settlement.–Lantz v. Cole, been authenticated, the order can not be re

172 Cal. 245, 156 Pac. 45. viewed, even though the notice is printed in

14. Settlement of bill.-It is error upon the transcript.-Lincoln County Bank V. Fetterman, 170 Cal. 357, 149 Pac. 811.

an appeal taken from a judgment entered 5. Upon an appeal from a judgment fore

by the clerk upon the verdict of the jury in

an equity case before the signing and filing closing a mortgage, intermediate orders and

of findings of fact and the rendition by the papers included in the record not certified

court of any judgment therein, to direct to by the trial judge can not be considered.

the insertion in the bill of exceptions of the -Dietz v. Scott, 27 Cal. App. 320, 149 Pac.

ex parte order made subsequent to such 775.

judgment vacating the same, the findings 6. Delay in service of, effect.--Written

of fact and conclusions of law and the notice of entry of order denying a motion

judgment based on such findings, for the for a new trial is waived by the making

same are immaterial to such appeal, and, of an application for an order setting aside

being so, mandamus will not lie to compel the order denying the motion on the ground

the striking of the same from the bill of of excusable neglect of counsel, and a pro

exceptions.-Holland v. Superior Court, 169 posed bill of exceptions not served within

Cal. 361, 146 Pac. 878. ten days after the making of such applica

new tion is too late, in the absence of any order

A statement on motion for a extending the time of such service.-Fig

trial, settled by a judge other than the one hiera v. Dewhirst, 32 Cal. App. 245, 162

who presided at the trial, will not be re

fused consideration Pac. 655.

on appeal because of 7. The mere pendency of a motion by

the failure to recite why the statement was appellant to amend

not settled by the latter judge, since the the findings, subsequently made, could not operate to extend

presumption of regularity attending official the ten days given herein within which to

acts of courts and their judges is sufficient serve his bill.-Hole v. Takekawa, 165 Cal.

to support such action.-Lincoln v. Sibeck, 372, 132 Pac. 445.

27 Cal. App. 61, 148 Pac. 967. 8. Delay in serving a bill of exceptions

16. Ordinarily the burden is cast upon may be cured by the voluntary consent and the proponents of a bill of exceptions to waiver of the parties not served.—Title Ins. bring the matter of its settlement to hear& Trust Co. v. California Devel. Co., 171 ing and determination even after the proCal. 174, 152 Pac. 542.

ponents of the bill have left it with its 9. A bill of exceptions which has not amendments with the clerk for the judge.been served upon some of the parties may

Slye v. Hunt, 29 Cal. App. 117, 154 Pac, 607. be considered with a view to the modifica- 17. Where upon the hearing of the set. tion of the judgment so far as the rights of tlement of a bill of exceptions upon a mothose parties not served are not affected.- tion for a new trial, the trial judge after Title Ins. & Trust Co. v. California Devel. the matter of the settlement had proceeded Co., 171 Cal. 174, 152 Pac. 542.

for some time requested counsel for both 10. A bill of exceptions, even though not sides to confer and attempt to agree on cerserved upon certain adverse parties, may be tain of the amendments, and report to him considered and the judgment modified in so as to what could not be agreed upon, and far as such modification may be ordered the further hearing of the matter was conwithout impairing the rights of the parties tinued until such report, the court is not not served.-Title Ins. & Trust Co. v. Cali- justified four months thereafter in refusing fornia Devel. Co., 171 Cal. 174, 152 Pac. 542. to settle the bill on the ground of laches;

11. The failure to make timely service of under such circumstances the judge constithe bill of exceptions to be used on a motion tuted counsel for both parties as in a sense for a new trial does not affect the jurisdic- his aids in the duty which was primarily his tion of the subject-matter, and such delay own, and by so doing invested each with may be cured by the voluntary consent and the responsibility of reporting back to him

15.

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