The herald., 1893-09-15
THE SUPREME COURT.
THE CITY OF SANTA ANA VS..
T. j. HARLIN.
Judgment Reversed and New Trial
Granted-JudGment Affirmed
In the Case OF Cole
VS.. wilcox.

Yesterday Depcty Supreme Court
Clerk Sesnon received for fling an opin-
ion in the case OF the city OF Santa Ana
respondent va. T. J. Harlin, appellant.
1t was an action brought by the city
OF Santa Ana to condemn right Of way
over certain land OF the defendant for
the opening Of Second atreet in that city.
There was jury trial and the dam
ages were assessed at $2e7, for which
amount judgment was entered in favor
OF the defendant, as we'll as decree that
the use OF the land Tor the purposes of
"a street WAS public oae and The taking
thereof necessary to that use.
An appeal was taken from the jndg-
ment and an order denying motion for
new trial. The final order OF con-
demnation had not been made when the
appeal was perfected.
One ground for error was an order OF
the court striking out from defsndant's
answer certain allegations to the effect
that the action was instituted upon the
motion and at the request and for the
benefit of the Santa Ana and Weatmin-
lister Railroad company. The question
sought to be raised was one going to the
public character of the uss and the
necessity for its establishment.
As such thu supreme court holds that
it was properly solvable by the city
council, and that the court did not err
in striking out that portion OF the answer.
After plaintiff rested the case the de-
fendant offered in evidence all the pro-
ceediugs and records in the matter Of
"a So - 49,.
dictional facts he had not been provided
for; that there was no street superin-
tendent, and that no publication OF no.
tice was ever made as required by law.
An objection was sustained by the court.
This ruling ws618ssigned as error rxssS:sssss
The aupreme 9Nt holds #
statement failed t0kttew in.
proffered evidence cdse5atsd saa< Gan
not cay whether it Wa I'M Ell jAl bascs
tinent. Error mnnt buy 8ii
the absence OF all shoi85GH VI ill ~ hs
presumed. z 43ss
The supreme court &]scjholds that the
bonds OF Humphreys and Head offered
in evidence were properly excluded as
not within the issuess also that testi-
mony introduced to show the quality,
location and surroundings Of the land
thken WAS proper.
The court then says that upon some
testimony as to the characteristics of
the land the superior court erred. 1t
should have permitted full and free
investigation as to the adaptability Of
the land to the varied practical pur-
pose to which 1t is naturally adapted,
which it did not do. The Judgment is
reversed and new trial granted.
JUDGMENT AFFIRMED.
The Judgment OF the lower court is
affirmed in the case OF Cole, respondent,
We. Wilcox, executrix. appellant.
The action was brought to recover
damages for the alleged diversion of
water from caiion on the plaintiffs
land, through an artificial channel con
structed by the defendant'a tesrator.
The case was tried by a Jury, which
rendered verdict in favor OF the de-
fendant. A motion OF the plaintiff for
a new trial upon ground, among others.
that the verdict was contrary to the evil
dence, was granted by the court, and
from this order the defendant appealed.
When the motion for new trial came
on for hearing, the defendant objected
to the court hearing the same, upon the
ground that the statement OF the case
which had been settled by the court
was not served upon him by the plain,
tiff within the time allowed by law, and
that the court had lost Jurisdiction to
settle any statement in the case, and
that for this reason the court erred in
granting new trial.
The supreme court says the correct.
ness OF the courts action in granting
the new trial must be determined upon
the record on which it acted npon the
hearing of that motion, and is not af-
fected by any error which it may have
in matters not connected
with such action.
It also says that the action OF the trial
court in granting o new trial, for the
reason that the former verdict or de-
,ision was not supported by the evil
1ence, is 80 much a matter ofdiscretion.
that unless itappears that there was an.
abuse OF that discretion, the supreme
court will not interiors with it's action.
in the present case, the
plaintiff may have shown himself en-
titled only to nominaly damages, vet a
verdict for or against him would be de-
,isive OF right which might be svail-
able in future Iitipation Tho ordor ;o