Pinkham & McDonough v. McFarland & Elrod

5 Cal. 137

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Murray, C. J., delivered the opinion Of the Court.

Heydenfeldt, J., concurred.

The endorsements of the notes sued on are not denied with sufficient certainty by the answer; if they were, the defendants ought to have objected to their introduction in evidence.

As no such objection was made, the plaintiffs were warranted in supposing it was waived, and the subsequent motion for nonsuit was a surprise upon them which the Court should have relieved, by admitting further testimony.

The power of opening tip a case after it has been once submitted, rests in the sound discretion of the Court hearing the cause, which we will not as a general rule attempt to revise. In this case, however, the plaintiffs have beejMfc^l by the acts of the defendants, and justice requires that a ne^^HBmould be granted*

Ordered accordingly.