Opinion
Department Two
Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.
COUNSEL:
Wheaton, Kalloch & Kierce, for Appellants.
John L. Boone, for Respondents.
JUDGES: McFarland, J. De Haven, J., and Fitzgerald, J., concurred.
OPINION
McFARLAND, Judge
This is an appeal by plaintiffs from a judgment in favor of defendants, and from an order denying plaintiffs' motion for a new trial.
After the evidence on both sides was in, the court granted a nonsuit. Before the nonsuit was granted appellants made a demand for findings which was refused, and afterwards they took an exception, which perhaps included both the failure of the court to make findings and the nonsuit. But the order of the court granting a nonsuit is nowhere assigned as error, and therefore it cannot be assailed. "When a nonsuit is granted and the plaintiff makes a statement for a new trial, in the specifications of errors, why a new trial should be granted, he must inse rt the alleged error of granting a nonsuit." [37 P. 147] (McCreery v. Everding , 44 Cal. 284.) "The question presented on a motion for a nonsuit is a question of law, and in the statement on new trial the decision of the motion should be specifically an error of law." (Donahue v. Gallavan , 43 Cal. 573.)
As the order granting the nonsuit is not assigned as error, no action of the court prior to the nonsuit need be examined. We may say, however, that a nonsuit can be properly granted after the evidence on both sides is closed (Geary v. Simmons , 39 Cal. 224; Vanderford v. Foster , 64 Cal. 49), and that findings are not required in a case of nonsuit. (Reynolds v. Brumagim , 54 Cal. 254; Gilson etc. Co. v. Gilson , 47 Cal. 601.)
Judgment and order affirmed.