The record-union., 1891-09-16
PLAIN TALK.
The Supreme Court Knocks Out a
Fresno Judge.
He Pursued a Course That, While
Novel, is Declared to Be
Unlawful.

The case of Montgomery VS.. Sayre, ex-
ecutor (appellant), was decided yesterday
and filed in the office of the Deputy Clerk
of the Supreme Court in this city.
The action was brought in Fresno
County, on a promissory note executed
by Sayre's testator to the plaintiff 1t
was given to secure the payment of the
note of the Pioneer Gold Mining Com
pany to the plaintiff for $4,000 This
last note was indorsed by William S.
Chapman and is secured also by mort
gage on the Pioneer mine.
1t further appears that there was a prior
mortgage executed by the company on
the Pioneer mine. ON which a suit of fore
closure was brought, and in this suit the
plaintiff, who was one Of the defendants
therein, filed cross complaint, asking
that his mortgage be fOreclosed. This
was done and an order of sale issued di-
recting the proceeds Of the sale of the
mine under the decree to be applied, first
TO the payment Of the prior mortgage, and
the remainder upon the plaintiffs mort
gage. The Sheriff's return showed a de-
ticiency on the second debt to plaintiff,
amounting to SCI ,534 13. Judgment for
this deficiency was dOcketed against the
nnortgagor company and w. S. Chapman.
This action was brought on theinote to
recover the amount claimed to be due
thereon. to be paid by the defendant in
due course of administration.
TRIED BY Jury.
1t is set up in answer that the Sl1O,0
note had been fully paid and was denied
that any sum remained due and unpaid
thereon. Other allegations of the COM
plant were denied.
The case was tried by jury and a ver-
dict rendered in the form of questions,
but appeared that the trial proceeded
after the return of the verdict and the
court subsequently rendered it's decision
finding on all the issues in the case, dis
regarding the verdict, treating it as non
existent, and in fact, finding contrary to
the answers of the jury on the questions
submitted to them, and rendered judg
ment for the plaintiff for a sum of money.
He appeals from the judgment.
The Supreme Court says the tindings'of
fact by the court upon which the judg-
ment is based are directly opposed to the
special findings of the Jury. The Jury
found Chapman's lands in Fresno Coun-
ty to be worth SI36, 800. The court found
that S95, 600 was the reasonable value of
the lands. The jury found that Mont
gomery, the plaintiff, did release Chap
man from all liability, and the court
found that Montgomery did not agree to
release Chapman.
VITAL ISSUES.
''These are vital issues in the action"
says the Supreme Court, ''for Sayre was
IN law surety and 4 guarantor is ex-
onerated, except SO far as he may be in
demnified by the principal, if bv any act
OF the creditor, without the consent of the
guarantOr, the original obligation of the
principal Is altered in any respect, or the
remedies or rights of the creditor against
the principal III respect thereto, in any
way impaired or suspended %
It seems that all the issues involved were
not submitted to the jury, and for that
reason the verdict may be termed an in
complete and imperfect special verdict.
This court Will indulge in all
proper intendments necessary in order
to support the validity of Judgment
where an appeal is presented to US solely
upon the Judgment roll, but we think
upon the face Of this record there is suffi-
cient to indicate that this trial in the
lower court took not only a novel but in
consistent and unlawful course. >
In this case jury was impaneled and
verdict rendered as to certain issues, and
1t Is unnecessary to closely scrutinize that
verdict TO ascertain whether it is defect
i've and informal or complete and perfect
1t was the verdict of jury placed in the
box to try the cause, and it
CANNOT BE DIsREGARDED
Until set aside and vacated by the court,
As we have already seen, the court made
findings directly contrary to this verdict.
and this action of the court was in effect to
vacate and set it aside. 1t is ilnmaterial
whether such action was had by reason
of defects and informalities in the verdict.
or whether the evidence was such as to
indicate that it was rendered through pas
sion or prejudice, the result would be the
same, and that result would be that a new
trial shonld have been ordered Such is
necessarily the law, for if it were other
wise, parties would be deprived of their
right TO trial by jury.
When theI court set aside and vacated
the verdict it was its duty. to order new
trial. ltihad no power TO proceed TO de-
terlnlne the cause, as the court cannot
enter verdict contrary to the viii of the
jury so it cannot substitute it's judgment
for theirs and assume the power to decide
the issues Of fact once submitted to the
jury.
I'VE therefore conclude that the YER
dict was set aside and vacated by the
court and that the court had no power to
proceed and determine the cause. but
should have ordered a new trial. Let the
Judgment be reversed and the cause re-
manded.'
The opinion is written by Justice Ga
route, and concurred in by Chief Justice
Beatty and Justices DeHaven, McFar-
land, Paterson and Harrison.
,rlv,