General

CHRISTINA SCHWARTZ, Respondent, v. ANDREW DE WIT and H. SOPHIA DE WIT (Wife), Appellants

1 Cal. Unrep. 40·Supreme Court of California·1856·CA

We concur: Murray, C. J.; Terry, J.

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Opinion

CHRISTINA SCHWARTZ, Respondent, v. ANDREW DE WIT and H. SOPHIA DE WIT (Wife), Appellants. No. 1192; November 18, 1856. Nonsuit — Failure of Defendant to Answer. — A nonsuit in a canse in which the defendant had filed no answer may properly be set aside, and there should be a new trial awarded the plaintiff. APPEAL from Twelfth Judicial District, San Francisco County. Baker, Dawes & Westar for respondent; J. C. Albertson and James McCabe for appellants. [MAJORITY — HEYDENFELDT, J.] HEYDENFELDT, J. — The plaintiff was entitled to judgment against- the defendant, who failed to answer, and this makes the nonsuit erroneous. The court below was certainly right in correcting this error by setting aside the nonsuit and ordering a new trial. In another trial the plaintiff may obtain in the district court that which he seeks, and therefore this appeal is not properly taken. Order affirmed. We concur: Murray, C. J.; Terry, J.