true name, Westfall, without proof that Doe and West- 9. WAIVER.-The acceptance by plaintiff's attorney CHAPTER III. ISSUES THE MODE OF TRIAL AND POSTPONEMENTS. SECTION 588. Issue defined, and the different kinds. 589. Issue of law, how raised. 590. Issue of fact, how raised. 591. Issue of law, how tried. 592. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. 593. Clerk must enter causes on the calendar, to remain until disposed of. 594. Parties may bring issue to trial. 595. Motion to postpone a trial for absence of testimony, requisites of. 596. In cases of adjournment a party may have the testi mony of any witness taken. 588. (§ 151.) Issues arise upon the pleadings when Issue defined, and the different a fact or a conclusion of law is maintained by the one party and is controverted by the other. They are of kinds. two kinds: 1. Of law; and, 2. Of fact. NOTE.-Pardee vs. Schenck, 11 How., p. 500. law, how 589. (§ 152.) An issue of law arises upon a demur- Issue of rer to the complaint or answer, or to some part thereof. raised. NOTE.-Stats. 1854, p. 62. 590. (§ 153.) An issue of fact arises: 1. Upon a material allegation in the complaint con- Issue of troverted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined thereon. NOTE.-Marshall vs. Shafter, 32 Cal., p. 176. fact, how raised. 591. (§ 154.) An issue of law must be tried by the Court, unless it is referred upon consent. NOTE.-A trial is the examination before a competent tribunal, according to the law, of the facts, or a question of law put in issue in a cause for the purpose of determining such issue.-Mulford vs. Estudillo, 32 Cal., p. 131. Until a decision has been entered in the minutes, or reduced to writing by the Judge, and signed by him, and filed with the Clerk, a case has not been tried.-Hastings vs. Hastings, 31 Cal., p. 95. 592. (§ 155.) An issue of fact must be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided in this Code. Where there are issues both of law and fact, the issue of law must be the former first disposed of. to be first NOTE.-1. DEFINITION OF TRIAL.- Mulford vs. Estudillo, 32 Cal., p. 131; Hastings vs. Hastings, 31 Cal., p. 95, cited in note to Sec. 591, ante. 2. MATTERS TO BE DETERMINED BY THE JURY.Dedication of a street is a conclusion of fact, to be drawn by the jury from the circumstances of each case; the whole question as against the owner of the soil being, whether there is sufficient evidence of an intention on his part to dedicate the land to the public as a public highway.-Harding vs. Jasper, 14 Cal., p. 648. The question of abandonment of a mining claim is a question for the jury.-Waring vs. Crow, 11 Cal., p. 371. As is that of the reasonableness of the use of water to be determined by the jury upon the facts and circumstances of each particular case.-Esmond vs. Chew, 15 Cal., p. 143. So to the question of diligence. Weaver vs. Eureka Lake Co., 15 Cal., p. 274. And the question of damages in an action of trespass.Drake vs. Palmer, 4 Cal., p. 11. The fact whether a structure was a public nuisance is a question for the jury.-Gunter vs. Geary, 1 Cal., p. 467. The question of malice, in an action for malicious prosecution, is for the jury.-Potter vs. Seale, 8 Cal., p. 217. In an action for malicious prosecution of a suit on a bill of exchange which was paid, whether the plaintiff's in that suit knew that the bill was in fact paid, when they sued, is a question for the jury.-Weaver vs. Page, 6 Cal., p. 684. The existence of a custom is a question for the jury to decide.-Panaud vs. Jones, 1 Cal., p. 500. The question of notice of dissolution of partner ship is a fact for the jury.-Rabe vs. Wells, 3 Cal., p. 151; Treadwell vs. Wells, 4 id., p. 260. Where an action was brought for the balance of an account, and the answer set up payment by a promissory note, and the plaintiff replied that he was induced to receive the note by fraud, the Court held that it was one of the cases where the party was entitled to a trial by jury, and that it could not be referred but by consent of the parties. Seaman vs. Mariani, 1 Cal., p. 336. Where the boundaries of a lot of land are uncertain, the location of the lot is a question for the jury.-Reynolds vs. West, 1 Cal., p. 328; Hicks vs. Davis, 4 Cal., p. 69. What is actual and what is constructive possession in many cases is a question of fact for the jury.-O'Callaghan vs. Booth, Cal., p. 65. So, too, is the question of the dedication of the premises by possession as a homestead.-Cook vs. McChristian, 4 Cal., p. 26. 3. MATTERS TO BE DETERMINED BY THE COURT.A Court does not require the verdict of a jury to inform it of facts occurring in the presence of the Court.People vs. Judge of the Tenth Judicial District, 9 Cal., p. 21. A party cannot try his case before a Judge, without objection, and after he has lost it object that the case was not tried by a jury.-Smith vs. Brannan, 13 Cal., p. 115. If there is no dispute as to the facts, and the law upon those facts declares a transaction fraudulent, there is no question for the jury.-Chenery vs. Palmer, 6 Cal., p. 122. What facts and circumstances constitute evidence of carelessness, is a question of law for the Court to determine. But what weight the jury should give to these facts and circumstances is for the jury.-Gerke vs. California Steam Navigation Co., 9 Cal., p. 258. After judgment by default in ejectment, a jury trial cannot be awarded.-Smith vs. Billet, 15 Cal., p. 26. Whether a judgment entered in the Court below is entered in accordance with the mandate of the appellate Court, is a question of law, and not of fact.-Leese vs. Clark, 28 Cal., p. 33. 4. JURIES-IN EQUITY CASES.-The language of the Constitution as to trial by jury was used with reference to the right as it exists at common law. The right cannot be claimed in equity cases, unless an issue of fact be framed for the jury, under the direction of the Court. Koppikus vs. State Capitol Commissioners, 16 Cal., p. 248; Smith vs. Rowe, 4 Cal., p. 7; Walker vs. Sedgwick, 5 Cal., p. 192; Cahoon vs. Levy, 5 Cal., p. 249. A Court of equity may direct, whenever in its judgment it may become proper, an issue to be framed upon the pleadings, and submitted Clerk must enter causes on the calendar, to remain until disposed of. Parties may bring issue to trial. to the jury.-Curtis vs. Sutter, 15 Cal., p. 263; Weber vs. Marshall, 19 id., p. 447. In equity cases, the Court below may disregard the verdict of a jury.-Goode vs. Smith, 13 Cal., p. 84. Though special issues, framed by the Court according to equity practice, may be tried by a jury in equity cases; but if the failure to present the issues is the result of plaintiff's own motion, he cannot be allowed to take advantage of it.-Brewster vs. Bours, 8 Cal., p. 505. 5. JURY-MANDAMUS CASES.-In an application for mandamus to compel a Judge to sign a bill of exceptions, which the petitioner alleges he refuses to do, where the Judge in his answer avers that he has signed a true bill of exceptions, and that the one presented by the relator is not a true bill, it was held that the petitioner was not entitled to a jury to try the issue.-People vs. Judge of the Tenth Judicial District, 9 Cal., p. 21. 6. GENERALLY.-Where issues of law and fact are both raised, the issue of law should first be disposed of. Brooks vs. Douglass, 32 Cal., p. 208. If the answer contains a legal and an equitable defense, the Court may first try the equitable defense, and refuse the plaintiff a jury trial, and, if the facts warrant it, grant the equitable relief prayed for.-Bodley vs. Ferguson, 30 Cal., p. 511. 593. (§ 156.) The Clerk must enter causes upon the calendar of the Court according to the date of issue. Causes once placed on the calendar for a general or special term, if not tried or heard at such term, must remain upon the calendar from Court to Court, until finally disposed of. 594. (§ 157.) Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the Court, for good cause, otherwise direct, may proceed with his case, and take a dismis sal of the action, or a verdict, or judgment, as the case may require. NOTE.-See Sec. 581 of this Code. 595. (§ 158.) A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The Court may also require a the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. NOTE.-1. ABSENCE OF WITNESSES.-The affidavit of a party moving for a continuance, on the ground of the absence of a witness, must show that the facts expected to be proven by such witness are material.-People vs. Mellon, 40 Cal., p. 648; Hawley vs. Stirling, 2 Cal., p. 470; Berry vs. Metzler, 7 Cal., p. 418. An affidavit which merely shows that the desired witness resides in another county from that of the place of trial, and that a subpoena has been placed in the hands of the Sheriff of the county where the witness resides, and has been returned not served, does not show sufficient diligence to entitle the defendant to a continuance.-People vs. Williams, 24 Cal., p. 31. Affidavits must show due diligence in endeavoring to procure the attendance of witnesses and in preparing the trial.-People vs. Baker, 1 Cal., p. 404. The party must have resorted to the proper legal means for that purpose, or must satisfy the Court that a resort to such means would have been useless.-Kuhland vs. Sedgwick, 17 Cal., p. 123. Where the answer of defendant was filed May 10th, and the application for a continuance, to take testimony in New York, was filed June 14th of the same year, during which interval no attempt was made to sue out a commission for the purpose, it was held that this is not a sufficient diligence to entitle the party to a continuance.-Pierson vs. Holbrook, 2 Cal., p. 598. Affidavits for a continuance, based upon the ground of absence of witnesses, must state that the facts expected to be proved by absent witnesses cannot otherwise be proved.-People vs. Quincy, 8 Cal., p. 89; Pierce vs. Payne, 14 Cal., p. 419; People vs. Gaunt, 23 Cal., p. 156. Nor is it sufficient to state that the party has no other witnesses by whom he expects to prove the same facts.-Pope vs. Dalton, 31 Cal., p. 218. Affidavits for a continuance, on the ground of absent witnesses, should state that the testimony wanted is not simply cumulative, and cannot be proven by others, and, also, that the application is not made for delay; the charac Motion to postpone trial for testimony, absence of requisites of. |