
    [No. 13041.
    In Bank.
    September 4, 1889.]
    JAMES A. BELL, Respondent, v. SEREN A. MARSH, Appellant.
    Equity Case—Special Verdict—New Trial—Time for Service of Notice — Equitable Defense. — In an equity case, the verdict of a jury upon special issues is merely advisory to the court, and the time within which notice of intention to move for a new trial must be served does not begin to run until the court has adopted or rejected the findings of the jury. This rule applies to the trial by jury of an equitable defense to an action at law, upon which special issues are submitted to the jury, • if the case is treated by the court and by the parties in all respects as an action in equity, whether properly or improperly.
    
      Id.—Completion of Trial —New Trial — Construction of Code.— Section 659 of the Code of Civil Procedure must be construed together with section 656 of the Code of Civil Procedure; and no proceedings for a new trial can be had until after the trial is completed, and a final decision is reached by the court or jury. The action is not tried until all the issues have been disposed of; and a special verdict of a jury in an equity case does not render the action “tried by a jury” within the purview of section 659 of the-Code of Civil Procedure.
    Appeal from an order of the Superior Court of Santa Barbara County granting a new trial.
    The facts are stated in the opinion of the court.
    
      Thomas McNulta, for Appellant.
    This is not an equity case, and the verdict was conclusive, and motion for a new trial should be made within the statutory time after the special verdict. (Code Civ. Proc., sec. 659; Duff v. Fisher, 15 Cal. 379, 380; Allen v. Hill, 16 Cal. 113.) The character of an action as legal or equitable is not changed by the nature of the defense. (Hancock v. Plummer, 66 Cal. 338.) The plaintiff had a right to trial of the legal issues by jury (Code Civ. Proc., sec. 592), and the verdict could not be advisory as to those issues. The legal issue found in favor of defendant determined the whole case, and entitled defendant to judgment. (Code Civ. Proc., sec. 664; Martin v. Zellerbach, 38 Cal. 300; 99 Am. Dec. 189.)
    
      Hall & Taggart, and R. B. Canfield, for Respondent.
    The case had not been “tried until all the issues were disposed of, and there was no verdict to be made the subject of a motion for a new trial until the court had passed upon the findings of the jury as to the equitable defenses presented. (Crowther v. Rowlandson, 27 Cal. 385; Hinds v. Gage, 56 Cal. 486; Kiel v. Reay, 50 Cal. 62; Hayne on New Trial and Appeal, sec. 18, subd. 1.) Sections 656 and 659 of the Code of Civil Procedure must be read together. The proceedings for a new trial are not to be taken until after the trial, which means after the disposition of all the issues tendered by the pleadings. To hold otherwise would involve the conclusion that there might be several motions for a new trial by the same party, some prosecuted before and some after the final decision of the case. When equitable defenses are pleaded, the case is as to them an equity case. (Weber v. Marshall, 19 Cal. 457; Lestrade v. Barth, 19 Cal. 671; Martin v. Zellerbach, 38 Cal. 319; 99 Am. Dec. 189; Basey v. Gallaher, 20 Wall. 670; Quinby v. Coulan, 104 U. S. 420.) As to the equitable issues, the verdict of the jury was only advisory to the court, and there was no decision upon these issues until they were passed upon by the-court. (Hayne on New Trial and Appeal, sec. 18; Still v. Saunders, 8 Cal. 286; Bates v. Gage, 49 Cal. 126; Warring v. Freear, 64 Cal. 54.)
   Paterson, J.

This is an appeal from an order granting the plaintiff a new trial.

The action was upon a promissory note. The answer denied that the sum named in the complaint, or any other sum, was due or unpaid on the note, and for a second defense, and by way of counterclaim, averred that defendant was induced to execute and deliver the note by certain false and fraudulent representations. Defendant asked for affirmative relief. The case was tried before,a jury upon special issues framed and submitted by the court, and the verdict was rendered and filed on the seventh day of May, 1887.

All of the issues raised by the pleadings were submitted to the jury.

The plaintiff objected to the entry of the verdict or its-adoption by the court, upon the ground that in certain specified particulars the findings were not justified by the evidence. The court took and held the matter under advisement until the first day of February, 1888, and then adopted the findings of the jury as the findings of the court, and entered judgment thereon that the plaintiff take nothing, and that the defendant recover his costs. Afterward, on the tenth day of February, 1888, the plaintiff filed and served notice of his intention to move for a new trial, and on this notice, and a statement of the case subsequently filed, the new trial was granted.

The only question presented here for decision is, Was the notice of intention to move for a new trial filed and served within proper time?

Section 656 of the Code of Civil Procedure provides that “ a new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees”; and section 659 of the Code of Civil Procedure provides that “ the party intending to move for a new trial must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention,” etc.

These two sections of the code must be read together. No proceedings for a new trial can be had until “after the trial and decision by a jury or court.” In equity cases the findings of the jury are merely advisory. A case has not been tried until all the issues have been disposed of, and there has been no decision until the court has passed upon the facts, and drawn its conclusions of law therefrom. And so it has been held that in equity cases the time to give the notice does not begin to run until the court has either adopted or rejected the findings of the jury. (Bates v. Gage, 49 Cal. 126; Warring v. Freear, 64 Cal. 54.) The case at bar was treated by the court and by the parties in all respects as an action in equity; whether properly or improperly so treated it is unnecessary -now to inquire. To hold that the time to give the notice of intention begins to run from the rendition of the special verdict would necessarily put each party to the trouble, in the protection of his rights, of preparing and prosecuting motions for a new trial before either party knows what the decision of the court is to be.

Order aifirmed.

Works, J., Thornton, J., McFarland, J., and Fox, J., concurred.  