Ruiz

Plaintiffs appeal from an order granting defendants’ motion for a new trial.

Plaintiffs brought an action for cancellation of their grant deed conveying real property to defendants alleging as grounds therefor, fraud (both misrepresentation and concealment), undue influence and mistake. They also sought punitive damages. The action was tried by a jury which rendered a general verdict in favor of plaintiffs and against defendants. The jury also made findings of fact on issues submitted to it by the court. The jury’s findings indicated that mistake was the sole ground for cancellation of the deed, that upon cancellation plaintiffs should pay defendants $1,449.94, and that there was no basis for an award of punitive damages. Approximately a month after rendition of the verdict and the jury’s findings, the court made an “order re judgment.” In that order the court determined that the action as pleaded and tried was an action in equity and therefore the jury’s findings were merely advisory; however, the court indicated that it would accept the findings and directed counsel for plaintiffs to prepare a judgment cancelling the deed on condition that plaintiffs pay defendants…