Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] 15 Cal. 376 at 381.
Original Opinion of April 1860, Reported at: 15 Cal. 376.
Rehearing denied.
JUDGES: On petition for rehearing, the opinion of the Court was delivered by Field, C. J. Cope, J., concurring.
OPINION
FIELD, Judge
On petition for rehearing, the opinion of the Court was delivered by Field, C. J.--Cope, J., concurring.
The counsel of the appellants has asked for a rehearing, and in his petition has presented with great force considerations for adhering, on questions of practice, to previous decisions. We concede the correctness of his views, and had the attention of the Court been called to the statute, when the decision in Gray v. Eaton was rendered, we should feel constrained to follow, in all existing actions, the rule it expresses, however erroneous we might deem it. But the overlooking of the statute changes entirely the character of that decision, and takes from it all binding authority; and in point of fact, it has not been followed by the profession. Of numerous cases, which have since come before this Court, where issues have been framed and submitted to a jury, we are not aware of one in which a motion for a new trial was not made, provided objection was taken to the findings. The statute has been uniformly pursued in this matter. The present is the first instance, we believe, since the decision in Gray v. Eaton, in which the motion for a new trial has been omitted.
A single decision, made without notice of the statute, and which in fact sets the statute aside, cannot be invoked as authority, obedience to which we are bound to yield on the principle of stare decisis .
Aside from these considerations, we are satisfied that the plaintiff is entitled to an affirmance of the judgment on the merits, or at least, that the evidence is not so clearly against the findings as to justify interference with them under the ruling in Ritter v. Stock, 12 Cal. 402 .
There is one portion of the opinion, however, which should be changed--that which refers to the case of Walker v. Sedgwick, 5 Cal. 192. In that case the Court held that the regulations of the statute requiring, when an issue of fact was tried by the Court, the decision to be given in writing, and the facts found and the conclusions of law to be stated, did not apply to equity suits. In our opinion, in the case at bar, we intimated a disposition to adhere to that decision, and we now modify our language so as to leave the point open for further consideration. We have great reason to doubt the correctness of the decision, although we may be required to follow it, for the protection of the rights of parties in existing cases. The statute appears to us to apply to all cases, whether of legal or equitable cognizance, and the sooner we return to its simple rules, wherever there has been any departure, the sooner will the practice become uniform and settled.
Rehearing denied.