Duff v. Fisher

Citations

• 15 Cal. 375

Syllabus

<p>The findings of the jury on issues submitted to them in an equity case, if not objected to by motion for new trial, or if not set aside by the Court on its own motion, become established facts in the ease, and cannot be questioned in the Supreme Court for the first time.</p> <p>The Practice Act applies as well to legal as equitable actions, so far as its provisions are consistent with the rights and remedies administered in Courts of Equity. And the only way in which the verdict of a jury on issues submitted can be reviewed, is by motion for new trial—except, probably, that the Court, whether sitting in equity or on the trial of a common law action, may, of its own motion, set aside the verdict of a jury when clearly and palpably against the evidence.</p> <p>The old chancery rule on this subject stated.</p> <p>Though, on questions of practice, previous decisions are entitled to very great weight, still a single decision, made without notice of a statute, and in fact, setting aside the statute, cannot be invoked as authority on the principle of stare decisis.</p> <p>In suit by a vendee for specific performance of a contract of sale, the averment of tender of payment was in general terms—as that the tender had been repeatedly made, and that the plaintiff has been at all times, and still is ready and willing to pay; Held, that the tender should have been stated with greater particularity as to time, but that the objection, in this respect, cannot be taken for the first time in the Supreme Court.</p>