Jones v. Desmond — 2 Cal. Unrep. 455

Majority

p. 455

JONES v. DESMOND and Others.

No. 8602;

March 26, 1885.

6 Pac. 420.

Headnote

Appeal—Findings not Sustained by the Evidence.—Where a finding is on a material issue, and there is no evidence to sustain it, the judgment will be reversed and a new trial ordered.

APPEAL from the Superior Court of the City and County of San Francisco.

p. 456

M. Lynch for appellant; Clitus Barbour for respondents.

The defendants allege and the court found that in the action of Brooks v. Swineford the plaintiff recovered a judgment for the sum demanded in his complaint. The allegation must be deemed to be denied by the plaintiff in this action; and it is assigned as error that the finding is not justified by the evidence. We are unable to find any evidence of the recovery of a judgment by the plaintiff in the action of Brooks v. Swineford. The finding is upon a material issue, and as there is no evidence to sustain it, there must be a new trial. No other material error is specified.

Judgment and order reversed.