Los Angeles herald., 1892-12-24
A SUPREME COURT OPINION,
A Decision in the Case Of
Wilkes VS.. TibbittS.
Yesterdays Developments in the
Trial of CastillOn.
Proceedings Yesterday In the Various
Trlbunals-Notes on Cases Which
We're Considered New
Suits Filed.

The supreme court justices have just
handed down an opinion in the case oi
@. r. Wilkes vs.. Luther @. Tibbits and
Eliza M. Tibbits. The case was on ap.
peal from San Bernardino county. Dep
uty Supreme Court Clerk Ashmore
yesterday received the opinion, (which il
given in full:
This is en- appeal by the defendant
from judgment entered against them
and an order denying their motion for Q
new trial.
The transcript contains the judgment
roll, notice of intention to move for a
new trial and certain affidavits.
The findings recite that: "This cause
came on regularly for trial on the 10th
day Of May, 1891, before the court, with.
out q jury, a jury trial having been
waived by the partiee;" and the judg-
ment recites that: "a trial by jury
having been expressly waived by the
respective parties the cause was tried
before the court without jury" The
findings of fact cover all the Issues
raised by the pleadings, and the judg-
ment follows, and is in conformity with
the findings and conclusions OF law
drawn therefrom.
The notice of intention to move for a
new trial states that the motion will be
made upon the following grounds:
ID Irregularity in the proceedings
OF the court.
(2.) Order of court and abuse Of dis
cretion by which the defendants were
prevented from having fair trial.
(3.) Surprise, which ordinary pru-
duence could not have guarded against.
a. Errors in findings.
(6.) Errors in judgment.
The notice further states that the mo.
tion will be made upon affidavits. =
The afidavits are to the effect that be-
fore the case came on for trial the de-
fendant, Luther 9. Tibbits, duly de-
manded jury trial, and that venire
was issued and 16 Jurors were sum-
moned and were in attendance on the
day set for the trial; that when the
case was called for trial the said defend
ant asked to have a jury impaneled, but
the court refused to comply with his re-
quest and ordered him to pay the
amount of the jurors fees -$2l-into
court before he could be al
lowed to make his defense to the
action; that he paid the said $2l
into court and the jurors were then dis
charged by the court, against the will
and without the consent, and in opposi-
tion to the demand of defendant; and
that the said order of the court was an
abuse of discretion by which the edefend-
ants were prevented from having fair
trial. 1t is further stated that the court
erred III making several of it's findings,
and that the facts found were not true,
also that it erred in it's judgment in
stating that trial by jury was ex-
pressly waived by the respective parties.
Appellants contend that in view OF the
facts shown by these affidavits the judg-
ment should be reversed and the cause
remanded for new trial.
Conceding, without deciding, that the
point can be made on afidavits that q
litigant has been erroneously denied a
jury trial, still conclusive answer to
applicants' contention is, that while
the affidavits here relied on are found in
the transcript, it does not appear that
they were ever served on the adverse
party or fled in court, nor are they in
any way certified to or identified as hav-
ing been used on the hearing OF the mo-
tion.
This being so, they cannot be looked
to here for any purpose, but must be
wholly disregarded. johnson vs. Muir,
43 CAL, 642; Baker va. Snyder, So CAL,
617.)
The judgment and order appealed
from should be affirmed.