The San Francisco call., 1896-05-09
The Affirmed Finding Can Be
Entered Only on a Final
Decision.
EXPLAINING A FORMER OPINION
Judge Hebbard's Order Regarding the
S2Io,Io7 Reversed by the Su.
preme Court.

The Supreme Court has rendered an
other decision in the Hale & Norcross
case-one that further complicates the
great damage suit and delays all. chance of
securing the benefit of one Judgment until
the whole case has been settled.
The decision is quite blow to the hopes
of certain stockholders; it means that the
$210, 1877 80 for which judgment was rem
dered by Judge Hebbard, and which the
Supreme Court takes pains to say was a
good Judgment, must remain in allegiance
until the whole case has been settled.
This may mean long time, and it will
probably be months at least before it is
finally turned over to its rightful owners.
When the case came up in the Superior
Court there were two charges of fraud
made, upon each of which the plaintiffs
sought to recover. One was for excessive
charges for milling, the other was for
fraudulent milling. The judgment of the
court was for the plaintiffs for over a
million dollars, $225, 900 of which was for
excessive charges and the remainder for
fraudulent returns on the milled ores.
On appeal the Judgment for $225, 600 was
scaled down to $2l0, 1877 90, and at that
amount it was affirmed. The other iudg-
ment was reversed because the Supreme
Court believed there had not been suf-
fcient testimony taken on which to base
such judgment.
The case was sent back to Judge Heb
bard, and accompanying it was an opinion
containing this paragraph:
The judgment appealed from is set aside and
the Superior Court is directed TO enter judg-
ment as of the date OF its former judgment
against AlvinZa Hayward and II. NJ. Levy for
the sum of $210, 1877 so, with interest from
that date. upon the issue presented by the
milling the ore in the Mexican and Nevada
mills, and upon that issue the order denying
q new trial as TO these defendants is affirmed.
AS to the other appellants, except the Nevada
Mill and Mining Company. the order denying
new trial as to this issue is reversed and a
new trial thereon ordered. Upon the issue
presented by the claim for damages sustained
by reason of the imperfect and fraudulent mill
ing the order denying new trial Is set aside
as to all the appellants and the court is di-
rected upon the evidence already taken in the
case, and such other evidence as may be pre-
sented by either party, to make findings in ac-
cordance with the views hereinbefore ex-
pressed.
Judge Hebbard read the opinion and
entered the Judgment as directed for
| $210, 1877 80, and he set the other issue for
| trial. Hayward and the others de-
INJURED, for they SAID Judge Hebbard
could not enter the judgment until the
case had been decided upon every issue.
| Fox, the plaintiff, showed the decision and
said it could be done; Hayward ct al.
showed the decision and said it could not
| be done, but the order was made, and
Hayward and Hobart appealed from it.
| For half a day learned attorneys argued
| before the Supreme Court, asking that the
Judges explain themselves. Hayward
attorneys argued long 10 show that the
Supreme Court could have meant moth
ing else but that the affirmed judgment
should wait. and Fox's attorney, w. T
Baggett simply showed the decision anC
asked the Judges to say what they die
mean.
The Judges were not prepared to ex
plain, so the matter was taken under ad
visement. The court has considered The
matter for some months, and now il is an
nounced that when the court said to erlte
the Judgment, it did not mean to enter tn.
judgment, it meant to hold the judgmen
until the case should be finally decideC
and then enter it.
In rendering its explanatory opinion
the Supreme Court says:
1t is certain that the cases, If there are any
which can be taken out of the general rul
above stated, that but one Judgment final il
effect II not in form. can be entered, must b.
altogether exceptional and dependent upor
some especial considerations. No such consid
erations have been brought to our attention il
this case, nor were any such referred to in ou
| tOrmer opinion. In constituting our fOrme
judgment, therefore, the fair presumption i
that no direction to enter final judgment oil
some OF the issues, in advance of the trial OF
the remaining issues, was intended.
On examining the terms of that judgmen
we are unable TO find any plain or distinct di
rection of that kind. The court below was dj
rected to enter a Judgment as OF the date of ii
former Judgment, on the issue as to which
new trial was denied and as to the remaipin,
| issues a new trial was granted. No direction
was given as to when the particular judgmen
| eh0rrld he anfprad. and mr. to-, ;
that 1t was intended that 1t should be entere,
| at the same time as, and should constitute
all the issues in the case, in accordance witt
the general course of proceedings in lik
| cases.
| contrary would justify any other interpreta
ton. We are, therefore, of opinion that III
court below was not authorized to enter tn
judgment appealed from until ali the issue
between the parties before the court should b
| determined; and that when the court shal
have filed its findings upon the issues as 4
which new trial has been ordered, it viii
then be its duty to render a single judgmen
| upon the whole case which shall include tn
| judgment so heretofore directed to be entered
The Supreme Court then goes on I,
comment on its opinion and the interpre
tation put upon it in the following words
1t may be added, in justice to the learne,
Judge Of the court below and to counsel 70
plaintiff, that the language of our former judg
| Inent was perhaps not happily chosen or alto
gether clear in this respect, and was possibly
| standing alone, open to the construction II,
| sisted upon by plaintiff. But when regardeI
| in the general rule of procedure applicable ii
like cases, as above indicated, such con
| struction cannot, for the reasons stated, be in
dulged.
Four of the Justices concur in this In
terpretation, but Justice Harrison ant
Justice Garoutte still believe the cour
me ant that the judgment should be en-
| tered at once.
The decision has postponed execution
on the S210 900 judgment for an indefinite
period. Judge Hebbard will probably de
eide the case on the fraudulent milling ir
few days now, and he will then enter
4 both judgments together. The case will
go before the Supreme Court again, and
in the meantime the judgment is waiting
Rehearings and motions to continue, L
dismiss. to deny, will have to be argued
and decided, and the end of all is proble-
| matte. In the meantime the judemen,
for S2lO, 1877 80, rendered by one court and