Irwin v. Towne — 43 Cal. 23

Majority

p. 23

[No. 2,684.]

OLIVER IRWIN v. A. P. TOWNE and SAMUEL H. TOWNE.

Headnote

Order or Supreme Court as to New Trial.—Where the Supreme Court reverses an order of an inferior Court denying a motion for a new trial and remands the cause for further proceedings, in accordance with the * opinion given in the case, which opinion does not indicate that the proceedings should he different from the proceedings that would have followed the granting of the motion for a new trial in the first place, the order of the Supreme Court places the case, in point of the mere procedure to he followed, in the same situation as though the Court helow had directed a new trial.

The appeal in this case was decided at the October Term, 1871, and is reported in 42 Cal. p. 331. The defendants applied to the Supreme Court for a modification of the judgment.

The other facts are stated in the opinion.

By the Court,

In reversing the order denying the motion for a new trial an opinion was filed in which a construction was given to the descriptive calls in the deed under which the plaintiff claimed, but the opinion intimated nothing as to what particular proceedings were to be had on the return of the cause to the Court below. It concluded as follows: “ Order denying a new trial reversed and cause remanded for further proceedings in accordance with this opinion.” Had the Court below sustained the motion of the plaintiff for a new trial, no question could have arisen as to the proceedings to follow in the cause. Had no appeal been taken from such an order a new trial must have been the result, unless the plaintiff had dismissed the action. The order of this Court reversing the order denying the motion and remanding the cause for further proceedings in accordance with the opinion filed, places the case, in point of the mere procedure to he

p. 24

followed, in the same situation .as though the Court below had itself directed a new trial, for, as we have said, there is nothing to he found in the opinion filed which would indicate that the proceedings to be had should be different from the proceedings in any other case in which an application for a new trial had been allowed.

The application for a modification of the order entered here is denied and the remittitur will issue forthwith.