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SEC. 43. The court may refuse a new trial, provided the successful party will consent to a reduction of his judgment. 8 Cal. 294.

Court May Impose Terms.

SEC. 44. The court may impose terms in granting or refusing a new trial. In requiring a remittur [remittitur] of a portion of the judgment as terms for refusing a motion for a new trial, the court uses a sound and admitted discretion. It is only saying, that although the verdict is excessive, yet had it been so much less it would not be excessive. By the reduction, the action of both court and jury is made to coincide pro tanto against the defendant, and where that is the case, the result of the coincidence ought to be the measure of the judgment. 4 Cal. 383.

Rules to be Observed on Application for.

SEC. 45. There are three distinct steps recognized by the practice act in a proceeding to obtain a new trial, for the taking of each of which, except the last, a particular period of time is allowed: 1st. A notice of intention to move for a new trial. 2d. Filing and serving statement or affidavit. 3d. The motion for a new trial. 27 Cal. 337.

SEC. 46. An order extending the time for taking either of these steps should express with precision the object to be obtained. 27 Cal. 337.

SEC. 47. When the statute speaks of notice of motion, it means written notice. 12 Cal. 448.

SEC. 48. A notice of intention to move for a new trial may be extended by the court thirty days. 27 Cal. 113.

SEC. 49. The statute prescibing the practice in motions for new trials is plain and simple. The moving party prepares his statement and submits it to the opposite party. If satisfactory to him, they add a certificate, which they sign. If not, he proposes amendments and submits them to the moving party, and if they are accepted by him, the statement is then engrossed accordingly, and to the engrossed copy a certificate is added and signed by them, to the effect that the statement is correct and agreed to by them. If they cannot agree, the statement and proposed

amendments are submitted to the judge, who allows or denies according to circumstances. After the judge has thus determined what shall constitute the statement, it is engrossed accordingly, and a certificate added to the effect that it is correct, and if not signed by counsel must be signed by the judge. Nothing can be regarded by the supreme court as a statement which is not authenticated in one of these modes. 30 Cal. 510.

SEC. 50. Evidence not bearing on the points stated should be excluded. 27 Cal. 107.

SEC. 51. Where the merits of the case were not investigated in the lower courts by reason of an uncertainty as to the proper mode of proceeding under the anomalous provisions of the practice act relating to interventions, the supreme court awarded a new trial, although the decision of the court below upon the main question involved was approved, and the only error disclosed might have been cured by a direction to modify the judgments. 21 Cal. 280.

Effect of Granting a New Trial.

An

SEC. 52. Granting new trial vacates the judgment. order vacating a verdict or finding and granting a new trial, necessarily vacates the judgment in the case resting on such verdict or finding. 28 Cal. 527; 34 Cal. 624.

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SECTION 1. An action may be dismissed or a judgment of nonsuit entered in the following cases:

1st. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the un

dertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.

2d. By either party, upon the written consent of the

other.

3d. By the court, when the plaintiff fails to appear on the trial and the defendant appears and asks for the dismissal. 4th. By the court, when upon the trial and before the final submission of the case, the plaintiff abandons it.

5th. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. Pr. Act, 148.

It is a Question of Law.

SEC. 2. The granting of a nonsuit on the facts is a question of law. 13 Cal. 40.

When it shall be Granted.

SEC. 3. A justice may nonsuit the plaintiff when, in his opinion, the testimony offered by him does not support the action. 12 Johns. 299.

SEC. 4. Nonsuit is not proper where there is any evidence tending to prove the indebtedness. 13 Cal. 40.

SEC. 5. Plaintiff has a right to take a nonsuit at any time before the jury retires, there being no counter-claim; nor under the one hundred and forty-eighth section of the practice act is he bound to tender costs before the nonsuit. The provision as to costs is simply that, by the nonsuit, plaintiff becomes subject to costs. 13 Cal. 637.

SEC. 6. The plaintiff has not the absolute right to take a nonsuit after the case has been finally submitted and the jury has retired; but such right does exist at any time before such final submission and retirement. 18 Cal. 76.

SEC. 7. A plaintiff in a justice's court may withdraw and be nonsuited before the jury give in their verdict. 5 Johns. 346.

SEC. 8. When the plaintiff closes his evidence, if the court is of opinion that it would not sustain a verdict in

favor of plaintiff upon the testimony, a nonsuit should be granted. 23 Cal. 593.

Motion for, Should State Grounds.

SEC. 9. Where a motion is made for a nonsuit, without stating the grounds upon which it is made, it is not error to overrule the motion. 10 Cal. 267.

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SECTION 1. Nuisance Defined and Actions for.-Anything which is injurious to health, or indecent or offensive to the senses or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action. Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. Pr. Act,

249.

SEC. 2. What is Nuisance.-The fact whether a structure was a public nuisance is a question, not for the court, but for the jury to decide. Gunter vs. Geary, 1 Cal. 466. It is a public nuisance to erect a house in a highway. 1 Cal. 466. A house on fire or those in its immediate vicinity which serve to communicate the flames, is a nuisance which it is lawful to abate; and the private rights of the individual yield to considerations of general convenience and the interests of society. Surocco vs. Geary, 3 Cal. 73. The constitutional provision which requires payment for private property taken for pubs.c use does not apply to the destruction of a house to check a conflagration; nor can he who

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abates this nuisance be made personally liable for trespass, unless the act is done without actual or apparent necessity. 3 Cal. 73. The erection of a steam engine and machinery and a grist mill, in the cellar under an auction store: Held, not to be such an injury as to require a restraining power of the court; at least, not until the question of nuisance should be determined by a jury, and even then the remedy at common law is adequate. Middleton vs. Franklin, 3 Cal. 241. All that part of a bay or river below low water or low tide is a public highway, common to all citizens, and if any person appropriates it to himself, exclusively, the presumption is that it is a detriment to the public. Gunter vs. Geary, 1 Cal. 462. Where plaintiff's mining claim was overflowed by means of a dam erected by the defendants, the court ordered a reduction of the dam so as to prevent the overflow, or if necessary its entire abatement. Ramsey vs. Chandler, 3 Cal. 241. A ditch to carry off water rightfully flowing to a mining claim is as much a nuisance as a dam to flood it. Parke vs. Kilham, 8 Cal. 77. A person may construct or continue what would otherwise be an actionable nuisance, provided that at the commencement of it no person was in a condition to be injured by it or, in other words, mere priority as between owners of the soil gave a superior right. Tenny vs. Miners' Ditch Co., 7 Cal. 339. The diversion of a water-course is a private nuisance. Water Co. vs. Chapman, 8 Cal. 397. Tuolumne

SEC. 3. The statute defining what are nuisances and prescribing a remedy by action, does not take away any common-law remedy in the abatement of nuisances which the statute does not embrace. 5 Cal. 122.

SEC. 4. The rules of the common law were so far adopted in this state as to supply any defect which might exist in the statute laws by furnishing additional remedies for the correction of wrongs. 5 Cal. 122.

SEC. 5. It matters but little whether a nuisance complained of is called private or public at the common law; if either, it could be abated by the party aggrieved, if performed without a breach of the peace. 5 Cal. 122.

SEC. 6. Whatsoever unlawfully annoys or does damage to another is a nuisance, and such nuisance may be abated;

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