Bates v. Gage

By the Court, McKinstry, J.:

The appeal from judgment was not taken within one year after the judgment was entered. (Prac. Act, Sec. 336.)

No motion for a new trial was made after the decision of the Court below was rendered. A portion only of the issues raised by the pleadings were submitted to a jury. The verdict was but advisory, so that all the issues were determined by the Court. In an equity case, where all the issues are not passed on by the jury, the trial is not terminated when the verdict is rendered, and the special verdict is to be regarded as a portion of the findings of the Court.

The view we have taken is not in conflict with Allen v. Hill (16 Cal. 113), nor with Ellsassar v. Hunter (26 Cal. 284), cited by respondent.

Appeal from judgment dismissed and order denying a new trial affirmed.

Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.