Gray v. Noon

The Court

In this cause, which is an action on an undertaking given on procuring an injunction, a judgment of the Justice’s Court of the city and county of San Francisco, between the same parties for the same cause of action, was pleaded in bar.

The court, as to this defense, found the facts as follows :

“ That an action was brought upon said bond in the Justice’s Court, city and county of San Francisco, May (sic) 25th, 1879, for the sum of $299.98 damages, and that said court, upon the 8th of April, 1879, rendered its decision in favor of the defendants and against the plaintiff.”

This does not find any judgment in favor of defendants and against the plaintiff. It is a finding that the court rendered its decision in favor of defendants and against the plaintiff. Whether any judgment was pronounced or entered on this decision, does not appear anywhere in the findings. The decision may have been one in the nature of a nonsuit, and if a judgment had been entered in accordance with such a decision, it would not have been a bar. The findings thus fail to cover a material issue, and are, therefore, defective.

Under the circumstances, we think it best to reverse the judgment and order denying a new trial, and remand the cause for a new trial, and it is so ordered.

Hearing in Bank denied.