Ford v. Thompson

19 Cal. 118

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Field, C. J. delivered the opinion of the Court

Baldwin, J. and Cope, J. concurring.

This cause was tried in the District Court in March last, and a verdict rendered for the defendant. In July following, an order was made granting a new trial, and from the order the defendant appealed to this Court. Pending the appeal, the Court below proceeded, against the objection of the defendant, and tried the cause a second time; and its action in this respect constitutes one of the grounds upon which a reversal of-the judgment rendered upon the last trial is sought.

We think the ground mentioned sufficient. The appeal taken from the order granting the new trial was perfected by an undertaking for damages and costs under the three hundred and forty-eighth section of the Practice Act. The verdict having been in favor of the appellant, no other undertaking was required to obtain a stay of proceedings pending the appeal. (See sec. 356.) It was error in the Court below to proceed with a second trial until that appeal was determined in this Court. The judgment must therefore be reversed, and the cause remanded.

Ordered accordingly.