Donaldson v. Neville , 1 Cal. Unrep. 124 ( 1864 )

SHAFTER, J.

This is an action brought to recover damages for the conversion of a span of mules. The real point of the defense was, that the mules were not in fact the plaintiff’s property but the property of one Marshal. Counsel for the appellants admit that the evidence on this question of title was in conflict, and it folloivs that we cannot grant a new trial on the ground that the jury mistook the relative weight of the opposing proofs.

Surprise is also assigned as a ground upon which a new trial should be granted. Miner was an adversary witness, and the precise point upon which his testimony bore was distinctly raised in the pleadings. The testimony of the witness may have been unexpected to the defendants, and it may have greatly disconcerted them; but in view of the state of the pleadings, and of the fact that the defendants had not been misled by previous statements of the witness, they could not have been “surprised” by his testimony to a legal intent: Taylor v. California Stage Co., 6 Cal. 230.

Judgment affirmed.

We concur: Sawyer, J.; Sanderson, C. J.; Rhodes, J. Mr. Justice Currey, having been of counsel, did not sit on the trial of this case.