Opinion
Department Two
Application for writ of mandamus to Francis E. Spencer, Superior Judge of Santa Clara County.
The plaintiff was assignee of M. Farrell, an insolvent debtor, and brought his action in the lower Court to set aside an assignment made by Farrell to one William P. Dougherty of a tract of land used as a brick-yard, " together with the implements, material, plant, stock in trade, and live-stock," used in connection therewith. On the trial special issues were, by consent, submitted to the jury, covering the issues as to fraud and notice on the part of Dougherty, and also with reference to the number of bricks received by him; and the remaining issues, referring to the value of the personal property and the damages suffered by the plaintiff, were left to be disposed of by the Court. A verdict was rendered in favor of the plaintiff, and thereupon the remaining issues were set for hearing by the Court, but before the hearing a new trial of the issues submitted to the jury was granted by the Court on the motion of the defendant.
COUNSEL
Vincent Neal, for the Plaintiff.
Only one motion for a new trial can be made in an action, and that can only be made after all the issueshave been heard. The order granting a new trial was therefore a nullity. (Bates v. Gage , 49 Cal. 126.)
No brief on file for Defendant.
OPINION The Court:
We think the facts set forth in the petition do not entitle the plaintiff to the relief prayed for.
Writ denied.