Hyperlawhypertext legal database Toulouse v. Pare 103 Cal. 251

← Cases

Toulouse v. Pare

103 Cal. 251 Court Department Two. Decision date 1894-06-26 Docket No. 15338 English

Delivered by McFarland, J.

Contents

Majority

p. 251
[No. 15338.
Department Two.
June 26, 1894.]
BERNARD TOULOUSE et al., Appellants, v. AN T OINE S. PARE et al., Respondents.

Headnote

Nonsuit—Error of Law—Motion For New Trial.—When a nonsuit is granted, and the plaintiff makes a statement on motion for a new trial, he must insert in his specification the alleged error in granting a non-suit as an error of law, and if it is nowhere assigned as error it cannot be assailed upon appeal.
Id.—Nonsuit After Close of Evidence.—A nonsuit can be properly granted after the evidence on both sides is closed.
Id.—Findings.—Findings are not required in a case of nonsuit.
Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.
The facts are stated in the opinion of the court.
Wheaton, Kalloch & Kierce, for Appellants.
John L. Boone, for Respondents.

This is an appeal by plaintiffs from a judgment in favor of defendants, and from an order denying plaintiffs’ motion for a new trial.

After the evidence on both sides was in, the court granted a nonsuit. Before the nonsuit was granted

p. 252
appellants made a demánd for findings which wag refused, and afterwards they took an exception, which perhaps included both the failure of the court to make findings and the nonsuit. But the order of the court granting a nonsuit is nowhere assigned as error, and therefore it cannot be assailed. “When a nonsuit is granted and the plaintiff makes a statement-for a new trial, in the specifications of errors, why a new trial should- be granted, he múst insert -the alleged error of granting- a nonsuit-.” (McCreery v. Everding, 44 Cal. 284 .) “ The question presented on a motion for a nonsuit is a question of law, and in the statement on new trial the decision of the motion should be specifically an error of law.” (Donahue v. Gallavan, 43 Cal. 573 .)

As the order, granting the nonsuit is not assigned as error, no action of the court prior to the nonsuit need bé feiamined. We may say, however, that a nonsuit can be properly granted after the evidence on both sides is closed (Geary v. Simmons, 39 Cal. ,224; Vanderford v. Foster, 64 Cal. 49 ), and that findings are not required in a case of nonsuit. (Reynolds v. Brumagim, 54 Cal. 254 ; Gilson etc. Co. v. Gilson, 47 Cal. 601 .)

- Judgment and order affirmed.

De Haven, J., and Fitzgerald, J., concurred..

Cases cited