Sanchez v. Stout — 1 Cal. Dist. Ct. 241

Majority

p. 241

SANCHEZ vs. STOUT.

Twelfth Judicial District Court,

September, 1857.

Headnote

Continuance.

A defendant, as well as a plain®?, may have a canse continued, after the trial hassommence.d, on the ground of surprise.

This is an action of ejectment, brought by Francisco Sanchez, against Arthur B. Stout, and others, to recover possession of an hundred vara lot, situated in the city of San Francisco. The plaintiff submitted the case upon the pleadings, It having been averred in the complaint, and not denied in the answer, that a grant of che land in controversy, had been made to the plaintiff.

On the back of the grant, wMeh w$>3 gat in evidence by the defendants, Sanchez executed a deed of the premises to one “ El Moro,” who, dying, conveyed the same by a “ Spanish will,” to the grantors of these defendants. A witness, to prove this will, named Oxegosee Escalaste,

p. 242

wa9 offered by-fee defendants. Upon Ms taking the stand, plaintiffs ©¿mained Mm touching Ms competency m a witness, when he stated that he was. a native of Manila, that Ms father was a Spaniard, hut did net knew the parentage of Ms mother, A witness was then introduced by jáafetiffj, t?he had long resided in Manila, and who, from l&cslasite’s appearamc®, .judged Mm to be a " Chinese Mestizo,” i. e, a asá» ©f ©Maesa end other blood. Plaintiff objected to the introduction of hip tesfeotoy, as being within the rale declared by the supreme .court in fed es.es of th© People vs. Hall, 4 Cal. p, 399. Th® ©oust sustained th© objection, .and did not permit him to he introduced. A part of th© testimony m a deposition offered in evidence by defendguage certainly would tend

Defendants then asked to have the jury discharge, and the over the term, on the ground that they were surprised, firstly, by the exclusion of portions of the deposition, and secondly, by that of the

suspicion that the "witness was not a native Cali- fornian, until the objection was token on the' trial, but supposed that he was, 'from Ms appearance and language, and Ms having been one of fed old residents of this disü^sé. CrqelssU §• fin?'defasdsaife. Sobso-ít, J.™Although it is net was! for a caes to be continued, after trial

Bennett and Stutherland, for plaintiff. Crockett & Page, for defendant.

of fee defendant, on fee ground of OHrpHse,.upon Ms part, yet there seems to be no good reason why such a course should not be permitted. . The practice which obtains in our courts, of allowing a plaintiff to withdraw a juror and continue ©'©as®, on the above ground, is one wMeh, it seems to me, is not founded m good policy it would be better, in -all such cases, to let the trial pre- cede!, and leave the parties to their remedy, by-a motion for a new trial, but fee practice is too wol settled to be nbw- changed, by tMo court. The second, ground upon wMch this motion is based, fallo wife- in fee established rule, inasmuch as Escalante’s appearance ground upon which this motion is based, fallo wife-in fee established rule, inasmuch as Escalante’s appearance and language certainly would tend to threw counsel off from any inquiry into

p. 243

his nativity, but which being ascertained, readers him dearly incompetent as a witness. The first ground of ompnse advanced for the granting of this motion, is insufficient, but as tie second would have been a good one, under our practice, had. it been presented by a plaintiff, under similar circumstances, I will hold it to be so mow, and will grant defendants’ motion.