Toulouse v. Pare

37 P. 146, 103 Cal. 251, 1894 Cal. LEXIS 760

Opinion

McFarland, J.

This is an appeal by plaintiffs from a judgment in favor of defendants, and from an order denying plaintiffs’ motion for a new trial.

After the evidence on both sides was in, the court granted a nonsuit. Before the nonsuit was granted appellants made a demánd for findings which wag refused, and afterwards they took an exception, which perhaps included both the failure of the court to make findings and the nonsuit. But the order of the court granting a nonsuit is nowhere assigned as error, and therefore it cannot be assailed. “When a nonsuit is granted and the plaintiff makes a statement-for a new trial, in the specifications of errors, why a new trial should- be granted, he múst insert -the alleged error of granting- a nonsuit-.” (McCreery v. Everding, 44 Cal. 284.) “ The question presented on a motion for a nonsuit is a question of law, and in the statement on new trial the decision of the motion should be specifically an error of law.” (Donahue v. Gallavan, 43 Cal. 573.)

As the order, granting the nonsuit is not assigned as error, no action of the court prior to the nonsuit need bé feiamined. We may say, however, that a nonsuit can be properly granted after the evidence on both sides is closed (Geary v. Simmons, 39 Cal. ,224; Vanderford v. Foster, 64 Cal. 49), and that findings are not required in a case of nonsuit. (Reynolds v. Brumagim, 54 Cal. 254; Gilson etc. Co. v. Gilson, 47 Cal. 601.)

- Judgment and order affirmed.

De Haven, J., and Fitzgerald, J., concurred..