Vanderford v. Foster

California Supreme Court

Vanderford v. Foster

2 P. 736, 65 Cal. 49, 1884 Cal. LEXIS 436

CourtCalifornia Supreme Court

DecidedFebruary 12, 1884

DocketNo. 9,058

StatusPublished

Cited by7 cases

This text of 2 P. 736 (Vanderford v. Foster) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vanderford v. Foster, 2 P. 736, 65 Cal. 49, 1884 Cal. LEXIS 436 (Cal. 1884).

Pincite

Opinion

The Court.

In Geary v. Simmons, 39 Cal. 224, it was held a court is justified in granting a nonsuit, after the evidence on both sides has been heard in a case where, if the motion had been denied and a verdict found for the plaintiff, it would have been set aside as not supported by the evidence. If the case' before us had gone to the jury upon the evidence in the transcript, it would have been the duty of the court to set aside a [50]*50verdict in favor of plaintiff on motion. It comes within the rule laid down in Geary v. Simmons.

We think it proper to say, however, that the practice of moving for nonsuit after the defendant’s evidence is in should rarely be resorted to. Especially is this so when, as in the case at bar, the plaintiff introduced evidence to sustain all the averments of the complaint, as against a mere trespasser, and the materiality of establishing an immediate delivery and actual and continued change of possession only appeared after the defendant had made out his affirmative defense; that he was sheriff and took the property under process, etc.

Judgment and order affirmed.

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The Court.

In Geary v. Simmons, 39 Cal. 224, it was held a court is justified in granting a nonsuit, after the evidence on both sides has been heard in a case where, if the motion had been denied and a verdict found for the plaintiff, it would have been set aside as not supported by the evidence. If the case' before us had gone to the jury upon the evidence in the transcript, it would have been the duty of the court to set aside a [50]*50verdict in favor of plaintiff on motion. It comes within the rule laid down in Geary v. Simmons.

We think it proper to say, however, that the practice of moving for nonsuit after the defendant’s evidence is in should rarely be resorted to. Especially is this so when, as in the case at bar, the plaintiff introduced evidence to sustain all the averments of the complaint, as against a mere trespasser, and the materiality of establishing an immediate delivery and actual and continued change of possession only appeared after the defendant had made out his affirmative defense; that he was sheriff and took the property under process, etc.

Judgment and order affirmed.

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Bluebook (online)

2 P. 736, 65 Cal. 49, 1884 Cal. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanderford-v-foster-cal-1884.

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