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p. 137PINKHAM & McDONOUGH, Appellants, v. McFARLAND & ELROD, Respondents. No briefs on file.
Headnote
The power of opening up a case after it has been once submitted, rests in the sound discretion of the Court heating the cause, and. as a general rule will not be revised .Where one party to an action is misled by the act of the other, justice demands that a new trial should be granted.
Ap-peal from the County Court of Yuba County.
The defendants McFarland & Elrod, were sued as makers of two certain promissory notes.
The notes were regularly endorsed to the plaintiffs, who brought suit thereupon. The answer of the defendants admitted the genuineness and execution of the notes, but contained an allegation on information to the effect, that the plaintiffs were not the legal owners or holders of the notes, but that they had been placed in their hands by the payee for collection.
At the trial, plaintiffs offered the notes in evidence and rested. Defendants’ counsel moved for a nonsuit, upon the ground that plaintiffs had not proved the genuineness of the indorsements.
The Court granted a nonsuit; whereupon plaintiffs’ counsel requested of the Court permission to prove the indorsements—which request the «Court refused.
Whereupon, plaintiffs appealed,
Rowe and Haun, for Appellants,
William L. Willis, for Respondents,
Heydenfeldt, J., concurred.
The endorsements of the notes sued on are not denied with sufficient certainty by the answer; if they were, the defendants ought to have objected to their introduction in evidence.
p. 138
As no such objection was made, the plaintiffs were warranted in supposing it was waived, and the subsequent motion for nonsuit was a surprise upon them which the Court should have relieved, by admitting further testimony.
The power of opening tip a case after it has been once submitted, rests in the sound discretion of the Court hearing the cause, which we will not as a general rule attempt to revise. In this case, however, the plaintiffs have beejMfc^l by the acts of the defendants, and justice requires that a ne^^HBmould be granted*
Ordered accordingly.