Weinburg v. Somps

Citations

• 4 Cal. Unrep. 10
• 33 P. 341
• 1893 Cal. LEXIS 1031

Syllabus

<p>Trial.—The Mere Failure to Instruct the Jury on a point cannot be assigned as a refusal so to-do, where there was no request for such instruction.</p> <p>Trial.—Where a Witness is Called in Rebuttal, and then fully-cross-examined as to a matter to which an objection was sustained when witness was first called, the error, if any, in sustaining the objection, is cured.</p> <p>New Trial.—The Application for a New Trial because of the newly discovered evidence of three witnesses showed that the materiality of their testimony appeared from the testimony of plaintiff, who testified in the morning of the first day of the trial, and that the trial closed at 1:30 on the second day; that a messenger was sent for one of the witnesses on the morning of the second day, but witness was away from home. No subpoena was issued for any of these witnesses, and no application was made for time to procure the attendance. Held, that the application failed to show reasonable diligence.</p> <p>Trial—Chance Verdict.—Where the Jury Agree that each shall write out the sum he thinks plaintiff is entitled to recover, and then divide the aggregate of such sums by twelve, and that the quotient shall be the amount of the verdict, such verdict is determined by chance, within the meaning of Code of Civil Procedure, section 657, subdivision 2, providing that such misconduct of the jury may be shown by the affidavit of any of the jurors.1</p>