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Schwartz v. De Wit

1 Cal. Unrep. 40 Court Cal. Decision date 1856-11-18 Docket No. 1192 English

Judges We concur: Murray, C. J.; Terry, J.

Delivered by HEYDENFELDT, J.

Contents

Majority

p. 40
CHRISTINA SCHWARTZ, Respondent, v. ANDREW DE WIT and H. SOPHIA DE WIT (Wife), Appellants.
No. 1192;
November 18, 1856.

Headnote

Nonsuit — Failure of Defendant to Answer. — A nonsuit in a canse in which the defendant had filed no answer may properly be set aside, and there should be a new trial awarded the plaintiff.
APPEAL from Twelfth Judicial District, San Francisco County.
Baker, Dawes & Westar for respondent; J. C. Albertson and James McCabe for appellants.

— The plaintiff was entitled to judgment against- the defendant, who failed to answer, and this makes the nonsuit erroneous. The court below was certainly right in correcting this error by setting aside the nonsuit and ordering a new trial. In another trial the plaintiff may obtain in the district court that which he seeks, and therefore this appeal is not properly taken.

Order affirmed.

We concur: Murray, C. J.; Terry, J.