Schellhous v. Ball
California Supreme Court
Appeal from the District Court, Fourteenth Judicial District, Placer County. The plaintiff averred in his complaint that on the 20th of May, 1864, he sold defendant a tract of land for the sum of fourteen hundred dollars, and .that seven hundred dollars of the purchase money was due and unpaid. Plaintiff prayed for judgment for seven hundred dollars, and that the same be made a lien on the land.
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Appeal from the District Court, Fourteenth Judicial District, Placer County. The plaintiff averred in his complaint that on the 20th of May, 1864, he sold defendant a tract of land for the sum of fourteen hundred dollars, and .that seven hundred dollars of the purchase money was due and unpaid. Plaintiff prayed for judgment for seven hundred dollars, and that the same be made a lien on the land. Defendant, in his answer, denied that the money had not been paid, but averred that in June, 1864, the plaintiff gave his wife, Catharine T. Schellhous, an order on defendant for the money, and that…
1Opinion of the Court
By the Court, Sanderson, J.
A new trial is sought upon the following grounds :
1. Insufficiency of the evidence;
2. Surprise; and
3. Error in law.
I. The real point in controversy, and substantially the only point litigated, was whether the money sued for had been paid by the defendant to the plaintiff’s wife pursuant to the plaintiff’s direction; and upon that question the testimony was conflicting, which is a sufficient answer to the first ground of the motion.
II. To entitle a party to a new trial on the ground of surprise the same must be conclusively shown by the affidavits ; and moreover it…
2Cases cited2 opinions
- Turner v. MorrisonCalifornia Supreme Court · 1858
- Live Yankee Co. v. Oregon Co.California Supreme Court · 1857
3Cited by32 opinions
- Gaines v. WhiteSouth Dakota Supreme Court · 1891
- Kauffman v. De MutiisCalifornia Supreme Court · 1948
- Hall v. JensenIdaho Supreme Court · 1908
- Whitfield v. DebrincatCalifornia Court of Appeal · 1937
- Delmas v. MartinCalifornia Supreme Court · 1870
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