Opinion
06-01-1850
PARKER v. SHEPHARD, ET AL.
Mr. Shaw, for Plaintiff. Horace Hawes, for Defendants.
APPEAL from the Court of First Instance of the District of San Francisco. The facts upon which the judgment of the Court was based, are stated in the opinion of the Chief Justice. Mr. Shaw, for Plaintiff. Horace Hawes, for Defendants.
By the Court, HASTINGS, Ch. J. It appears from the record that the defendants were cited to appear and answer the complaint at the hour of ten oclock of the day specified for trial. That the judgment was rendered at the hour of nine oclock of said day, on ex parte proof of plaintiffs title, the defendants not being present.
From this decision of the Court the appeal is taken.
The proceedings of the Court of First Instance, one hour before the time of trial, are evidently irregular, and could not be corrected but by consent of parties. The defendants, it seems, had several days allowed by the Court within which to appear and make their defence; and inasmuch as it does not appear that they could not have had a fair trial on the merits, we think it but just that the costs of this Court should abide the event of a new trial.
The judgment, therefore, of the Court of First Instance is reversed, and a new trial upon the merits awarded.