
    [No. 8,679
    Department Two.]
    November 13, 1882.
    B. J. RHODES, Assignee, etc., v. FRANCIS E. SPENCER, Superior Judge etc.
    New Triad—Verdict in Equity Case—Conveyance in Fraud of Creditors—Practice.—In an action by the assignee of an insolvent to set asido a conveyance, a jury was impaneled to whom the issue of fraud was submitted, leaving certain other issues to be disposed of by the Court; and the trial resulted in a verdict for the plaintiff on the issues submitted. Afterwards, on motion of the defendant, the Court made an order for a new trial of the issues submitted to the jury; and refused to proceed ivith the trial of the remaining issues; and an application was made to this Court for writ of mandamus to compel him to proceed.
    
      Held: The facts set forth in the petition do not entitle plaintiff to the relief prayed for.
    Application for writ of mandamus to Francis E. Spencer, Superior Judge of Santa Clara County.
    The plaintiff was assignee of M. Farrell, an insolvent debtor, and brought his action in the lower Court to set aside an assignment made by Farrell to one William P. Dougherty of a tract of land used as a brick-yard, “together with the implements, material, plant, stock in trade, and live-stock,” used in connection therewith. On the trial special issues were, by consent, submitted to the jury, covering the issues as to fraud and notice on the part of Dougherty, and also with reference to the number of bricks received by him; and the remaining issues, referring to the value of the personal property and the damages suffered by the plaintiff, were left to be disposed of by the Court. A verdict was rendered in favor of the plaintiff, and thereupon the remaining issues were set for hearing by the Court, but before the hearing a new trial of the issues submitted to the jury was granted by the Court on the motion of the defendant.
    
      Vincent Neal, for the Plaintiff.
    Only one motion for a new trial can be made in an action, and that can only be made after all the issues have been heard. The order granting a new trial was therefore a nullity. (Bates v. Gage, 49 Cal. 126.)
    
      No brief on file for Defendant.
   The Court :

We think the facts set forth in the petition do not entitle the plaintiff to the relief prayed for.

Writ denied.  