Oct. 11, 1862, 232. Oct. 11, 1862, § 233. Motion for new trial. 6 Or. 169. 15 Or. 95. Oct. 11, 1862, $234. Same, when made. mitted on the pleadings is no cause In many cases, the better plan, With regard to the improper admission or rejection of evidence, the effect is the same whether the case is tried by a court, referee, or jury: Spanagel v. Dellinger, 38 Cal. 282; Osgood v. Manhattan Co., 3 Cow. 612; S. C., 15 Am. Dec. 304; Marquand v. Webb, 16 Johns. 89. Erroneous instructions to the jury, or refusing to give proper instructions, are errors in law: Yonge v. P. M. S. S. Co., 1 Cal. 354; Benedict v. Haggin, 2 Id. 385; Pearson v. Snodgrass, 5 Id. 479; People v. Payne, 8 Id. 344; Battersby v. Abbott, 9 Id. 568; Smith v. Arnold, 56 Id. 640. It is not an error of law that the evidence is insufficient to justify a particular finding of fact: Smith v. Christian, 47 Cal. 20; nor that the court failed to require the short-hand reporter to file his notes: Sais v. Sais, 49 Id. 263. The fact that instructions given by the court are lost or mislaid before a motion for new trial is heard is no ground to suspend the hearing of the motion for new trial: Visher v. Webster, 13 Id. 58. Error which is relied on must be shown clearly, affirmatively, and spe cifically: Clayton v. West, 2 Cal. 381; Kilburn v. Ritchie, 2 Id. 145; S. C., 56 Am. Dec. 326; Rabe v. Wells, 3 Cal. 148; Morgan v. Hugg, 5 Id. 409; Herriter v. Porter, 23 Id. 388; Cochrane v. O'Keefe, 34 Id. 556; People v. Best, 39 Id. 690. Errors in law which do not prejudice the complaining party cannot be made the ground of a motion for new trial: Seaward v. Malotte, 15 Cal. 307; Stark v. Barrett, 15 Id. 372; People v. Doyell, 48 Id. 93; People v. Cleveland, 49 Id. 580; People v. Keith, 50 Id. 137; Byrne v. Jansen, 50 Id. 624. When, however, error is shown, it is presumed the party against whom it was made was prejudiced: Jackson v. Feather R. Co., 14 Id. 22; Busenius v. Coffee, 14 Id. 91; Walker v. Woods, 15 Id. 66; People v. Stanley, 47 Id. 119; Leonard v. Kingsley, 50 Id. 628. But if the error is corrected in time to prevent injury, it will be no ground for a new trial: Ward v. Preston, 23 Id. 471; Union W. Co. v. Crary, 25 Id. 510; People v. Anderson, 26 Id. 134; People v. Hoy Yen, 34 Id. 176; Tynan v. Walker, 35 Id. 645; People v. Woody, 48 Id. 82. § 236. [233.] A motion for a new trial, with the affidavits, if any, in support thereof, shall be filed within one day after giving the verdict or other decision. sought to be set aside. When the adverse party is entitled to oppose the motion by counter-affidavits, he shall file the same within one day after the filing of the motion. The motion shall be heard and determined during the term, unless the court continue the same for advisement, or want of time to hear it. When not so heard and determined or continued, it shall be deemed withdrawn, and may be disregarded. § 237. [234.] Upon a trial by the court, when the decision is given in vacation, a motion for a new trial shall be filed within twenty days from the time of filing $234. Same, when such decision. If the next regular term of said court Oct. 11, 1862, shall commence within less than twenty days from the time of filing such decision, then such motion shall be made. filed by the first day of said term. In either case the adverse party may, within four days after the filing of the motion, file counter-affidavits where the same are allowed. 6 Or 170. $235. Motion should § 238. [235.] In all cases of motion for a new trial, Oct. 11, 1862, the grounds thereof shall be plainly specified, and no cause of new trial not so stated shall be considered or state grounds. regarded by the court. When the motion is made for a cause mentioned in subdivisions 1, 2, 3, or 4 of section 235 [232], it shall be upon affidavit setting forth the facts upon which such motion is based. $236. when allowed. § 239. [236.] If the motion be supported by affida- Oct. 11, 1862, vits, counter-affidavits may be offered by the adverse Counterparty; and if the cause be newly discovered evidence, anidavits the affidavits of any witness or witnesses showing what their testimony will be shall be produced, or good reasons shown for their non-production; and in the consideration of any motion for a new trial, reference may be had to any proceedings in the case prior to the verdict or other decision sought to be set aside. TITLE IX. OF GENERAL PROVISIONS. § 240. Questions of law and fact, how submitted, and when. § 241. Questions of fact to be decided by the jury. § 242. Questions of law, and what of fact to be decided by the court. Ø 237. Questions of submission of. § 240. [237.] Any party may, when the evidence is Oct. 11, 1862, closed, submit in distinct and concise propositions the conclusions of fact which he claims to be established, or law and fact, the conclusions of law which he desires to be adjudged, or both. They may be written and handed to the court, or, at the option of the court, oral, and entered in the judge's minutes. Submission to jury. — A party may submit all the conclusions of fact which he claims to have proved to the jury, the court deciding the issues Oct. 11, 1862, 238. Questions of § 241. [238.] All questions of fact other than those mentioned in section 242 [239] shall be decided by the fact to be dey jury, and all evidence thereon addressed to them. cided by jury. 12 Or. 369. Oct. 11, 1862, $239. What ques cided by court. § 242. [239.] All questions of law, including the admissibility of testimony, the facts preliminary to such tions to be de- admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it. And whenever the knowledge of the court is by this code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it as conclusive. Duty of court and jury. -A full statement of what matters are for the court and what for the jury cannot be inserted here. But cases illustrating who is to decide particular matters will be found throughout the code under the various titles. A few instances are here given. Where one of the witnesses deposed to a state of facts which upon his cross-examination proved to be hearsay evidence and wholly inadmissible, and the court ordered the testimony of the witness to be stricken out, and instructed the jury to disregard it, the supreme court held there was no error: Parker v. Smith, 4 Cal. 105. When the intention of one who makes a writing is to be judged of by the writing, it is a question for the court; but when the writing is to be judged of by extrinsic facts, and is part of a transaction, the rest of which consists of words or acts, the whole evidence should be submitted to the jury: Winter v. Norton, 1 Or. 42. Whether an agreement between parties amounts to an extension of time for the performance of a former contract between them, and if so what time, are questions of law for the court, and not of fact for a jury. Where the law itself prescribes what shall be considered to be reasonable time in respect to a given subject, the question is one of law, and the duty of the jury is confined to finding the simple facts. Where, on the other hand, the law "does not, by the operation of any principle or established rule, decide upon the legal quality of the simple facts, or res gesta, it is for the jury to draw the general inference of reasonable or unreasonable in point of fact. In such cases the legal conclusion follows the inference of facts; in other words, the question as to reasonable time, etc., is one of fact, and the time is reasonable or unreasonable in point of law according to the finding of the jury in point of fact: Luckhart v. Ogden, 30 Id. 548. a The jury must determine whether witness whose declarations are sought to be used against a party is that party's agent or not; Biggerstaff v. Briggs, 3 West Coast Rep. 353. The better practice is to decide upon the admissibility of evidence when it is offered; but if the rule be departed from, it is clearly the duty of the court, at a subsequent stage of the case, to rule upon the point distinctly, and if the evidence be excluded, to state on what ground: Mayo v. Mazeaux, 38 Cal. 445; Sharp v. Lumley, 34 Id. 614. When the facts are admitted or established by uncontradicted evidence, the question of negligence is a matter of law for the court: Flemming v. W. P. R. R. Co., 49 Cal. 257; Pittsburgh etc. R. R. Co. v. McClurg, 56 Pa. St. 294; S. C., 57 Id. 172; Biesiegal v. N. Y. C. R. R. Co., 40 N. Y. 9. The jury in an action for malicious prosecution are not to determine whether the facts amount to a probable cause; but it is the province of the court to determine that question: Harkrader v. Moore, 44 Cal. 145. In an action to recover damages for a malicious prosecution, it is not error for the court to instruct the jury that when the plaintiff first rested his case the court had decided as a matter of law that there was a want of probable cause, provided the testimony of the plaintiff and the admissions in the pleadings warrant it, and the testimony introduced by the defendant has not in any degree tended to obviate or avoid the want of probable cause made by the pleadings and the plaintiff's testimony: Kinsey v. Wallace, 36 Id. 462. It is the province of the court to construe a deed received in evidence: Moody v. Palmer, 50 Id. 32. In an action growing out of an agree ment made by letters to and from the respective parties, residing at a distance from each other, it is the duty of the court to construe those letters and determine whether they constitute a contract. In such a case it is the province of the jury to determine whether the letters were written and received by the respective parties; and the terms of the contract therein Oct. 11, 1862, contained complied with, and of the $239. court to determine the construction and legal effect of such contract: Ellis v. Crawford, 39 Cal. 523. Whether or not the overflowing of sewage is injurious to health, or offensive to the senses, or obstructs the plaintiff's property, or interferes with its enjoyment, is a question of fact: Requena v. Los Angeles, 45 Id. 55; People v. Davidson, 30 Id. 379; Blanc V.. Klumpke, 29 Id. 156. When the facts are agreed upon or ascertained, it is a question of law, and not of fact, whether the case is brought within the bar of the statute of limitations: Reed v. Swift, 45 Cal. 256. It is for the jury to decide upon the credibility of the witnesses: Wing Chung v. Los Angeles, 47 Id. 535. Knowledge of the court: See § 253 [250], post. TITLE X. OF JUDGMENT IN GENERAL. § 243. Definition of judgment. § 244. Judgment may be given for or against any of the parties. § 245. When judgment may be given against one or more defendants and action remain pending as to others. § 243. [240.] A judgment is the final determination Oct. 11, 162, of the rights of the parties in the action. Judgment defined. Every definite sentence or decision of a court, by which the merits of the cause are determined, is a judgment: Belt v. Davis, 1 Cal. 138; Loring v. Illsley, 1 Id. 24. A judgment dismissing an action is in effect a final judgment in favor of the defendant: Dowling v. Polack, 18 Id. 625. An order of the county court dismissing an appeal is a judgment within the meaning of this section: Pearson v. Lovejoy, 35 How. 193; S. C., 53 Barb. 407. A judgment may be a final adjudication in different senses. It may be final as $240. Judgment to the court which renders it without defined. being final as to the subject-matter. Although a judgment may be final 6 Or. 349. with reference to the court which pronounced it, and as such be the subject of an appeal, yet it is not necessarily final with reference to the property or rights affected, so long as it is subject to appeal and liable to be reversed: Hills v. Sherwood, 33 Cal. 478; United States v. Schooner Peggy, 1 Cranch, 103. Final judgment, as affecting ap peals: See post, § 535 [525.] 241. Judgment may § 244. [241.] Judgment may be given for or against Oct. 11, 1862, one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the be given for or justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. against any of the parties. 19 or. 144. 10 Or. 41, 49. Oct. 11, 1862, $241. Oct. 11, 1862, 242. Judgment against one or more parties. Oct. 11, 1862, $243. Judgment affecting less than all. A sued B and C as partners, and misjoinder was not set up in answer. Plaintiff proved his demand against B, but not against C, and it was held that a verdict and judgment in favor of plaintiff against B, and in favor of C against plaintiff, was correct: Rowe v. Chandler, 1 Cal. 168. In Stearns v. Aguirre, 6 Id. 176, this was doubted; but Stearns v. Aguirre was overruled by Lewis v. Clarkin, 18 Id. 400, People v. Frisbie, 18 Id. 402, and Claflin v. Butterly, 5 Duer, 327, which distinctly affirmed the principle laid down as above. The same principle was again affirmed in Tay v. Hawley, 39 Cal. 95. But see Curry v. Roundtree, 5 Id. 184, where it is held that the clerk cannot enter judgment by default against one of three partners sued jointly, nor can the court render judgment against two alone. Objections to misjoinder or non-joinder must be taken by demurrer or answer, or are waived: Rowe v. Bacigallupi, 21 Id. 635; Whitney v. Stark, 8 Id. 514; S. C., 68 Am. Dec. 360; Rutenburg v. Main, 47 Id. 221. And if there is no answer setting up misjoinder, plaintiff can, in an action for trespass against several defendants, introduce evidence of a several trespass, and recover against one defendant only: McCarron v. O'Connell, 7 Id. 152. But there must be some evidence against the defendants, against whom and for the plaintiffs for whom, judgment passes: Tormey v. Pierce, 42 Id. 337. If there is no objection by demurrer or answer, on the ground of misjoinder, the damages may be apportioned at the trial: Whitney v. Stark, S Id. 514; see also Weeks v. Gibbs, 9 Mass. 74; Rich v. Penfield, 1 Wend. 380. If misjoinder is pleaded, this section does not cure it: South Fork etc. Co. v. Snow, 49 Cal. 155. That in actions for torts, malicious arrest and prosecution, where the plaintiff sues two jointly, judgment apportioned between the two defendants in favor of plaintiff is erroneous, see McCool v. Mahoney, 54 Id. 491. But judgment against two defendants in tort may be reversed as to one on his appeal alone: Nichols v. Dunphy, 58 Id. 605. § 245. [242.] In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others. Judgment against part of parties. In an action on a joint and several contract, where some of the defendants refused to plead, it was held that judgment may be had by default against such defendants, without waiting for final trial on the merits against the other defendants as to whom issue was joined: Sears v. McGrew, 10 Or. 48. In ejectment against several defendants occupying different portions of the property, several judgments may be entered, and at different times, whether upon trial on separate verdicts, etc., or after default; the costs may be apportioned: Lick v. Stockdale, 18 Cal. 219. In an action against two defendants on a joint contract, plaintiff may have a several judgment against one defendant who has been served, even though the other has not been served: Kelly v. Bandini, 50 Id. 530. TITLE XI. OF JUDGMENT OF NONSUIT. § 246. When judgment of nonsuit may be given. § 247. What is a cause not sufficient to be submitted to the jury. § 248. Effect of judgment of nonsuit. § 246. [243.] A judgment of nonsuit may be given against the plaintiff as provided in this title, |