Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-02-27
TWO DECISIONS.
The Supreme Court Decides a MERGED
- :. ILL.,. r,.-..--.-- o.

The Supreme Court Decides a MERGED
and a Tuolumne County Case.
The following Supreme Court opinions
were filed in this city yesterday in the
Office of J. S. Williams, Clerk for the Sacs
ramento District:
John Stanton (respondenD VS.. H. W.
French, Constable. The case was appealed
from MERGED county, and the action was
brought to recover the value of two horses,
wagon and harness. They were taken
by defendant, as Constable, under an exc
cution against plaintiff and his wife, and
sold. Plaintiff claimed the property as ex-
empt from execution, under subdivision G
of section $50, Code Of Civil Procedure, the
claim being that es a peddler, he habitu-
ally used it to earn living. Plaintiff re-
covered judgment, and defendant appealed
from the judgment, and from an order de-
nying q new trial.
The Supreme Court says that the judg-
ment will have to bereversed on account Of
the refusal of the Court to give certain in
struetions asked by appellant. The defend
ant asked the Csnrt to give thirteen in.
structions, but the Court refused to do so,
and only gave two. The Court then gave
certain instructions asked by the plaintiff
The Supreme Court. in reversing the case
says that instruction No s, asked by appel.
liant and refused by the Court, that 1.-THE
burden of proving every material allega-
ton of the complaint is on the plaintiff
and if be fails to prove the material allega.
tons of the complaint by preponGer.
ance Of evidence, you should find for de
PENDANT" is so much of truism that per
haps the refusal or neglect of the Court t
give il should not of itself work a reversa
of the Judgment; but the other instruc
lions asked by defendant were correct auC
pertinent, aud should have been given
hence the judgment is reversed and thl
cause remanded for new trial.
TuoLUMNE CASE.
Widekind vs.. Tuolumne County Water
Company. This action was brought by
plaintiff for alleged damages caused hin
by the breaking of defendants reservoir
by reason OF which a large volume of watel
flowed over and into the mining claim O
plaintiff. situate below said reservoir, filling
said claim With earth, rock and timber, anC
carrying away mining implements and {
bridge constructed by plaintiff, and de
priyiDg plaintiff of the use of said claim
during the space Of four months.
The case wss tiled by jury, which re
turned verde; in favor OF plaintiff, and {
Judgment was entered in his favor fer tn,
damages awarded him by the verdict. De
PENDANT moved Tor a new trial, which wa
denied. and from that order and the judg
ment he appeals 10 the Supreme Court.
The appellants main contention is tina
the evidence is insufficient to justify thu
verdict. BE admits that break occurred
by which the water of the reservoir es
capped, but contends that it was not thu
dam proper but in the native earth at O
near the east end of the dam, which, i
proven, he claims would negative the aver
ment of its having occurred through care
lessness or negh gence in the construction
of the dam The last ground upon which
defendants counsel insists is irregularit,
in the proceedings Of the Court and abus
of discretion by the Court by which de
PENDANT was prevented from having fai
trial, in consequence Of the illness of hi
attorney.
In affirming the judgment of the Cour
below, the Supreme Court says the tria
appears to have proceeded, in al respects
as it would if defendants counsel had nc
been i'll.