Semple v. Burkey

Decided July 15, 1852

California Supreme Court · decided 1852-07-15

The proceedings in this case grew out of a motion to set aside a sheriff’s sale. Several affidavits and depositions were taken and submitted to the Court in the course of the hearing, and also the record of the proceedings, judgment and sale, which were the basis of the motion. The record shows that the case was elaborately prepared, and argued, in the Court below; and, by consent of parties, judgment was entered pro forma, without prejudice, overruling the motion.

Cited by 1 later decisions — most recently June 1899

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1852-07-15

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Heydenfeldt, Justice.

¶1This record discloses the trial by the Court of a motion involving an issue of fact.

¶2The judgment recites, “ by consent of parties the motion is overruled without prejudice to either party on appeal.”

¶3This judgment is pro forma, but it is unaccompanied by any agreed statement of facts, and there is no finding by the Court.

¶4In Russel v. Almador, we decided that without such finding the judgment cannot stand. The agreed statement of facts can be the only substitute for it.

¶5The judgment is reversed, and cause remanded for a new trial.