91 P. 322 | Cal. | 1907
Plaintiff brought this action against defendant Staacke, and the representatives of the estate *545
of Thomas Bell, deceased, to obtain a decree declaring that a tract of land in Santa Barbara County containing ten thousand acres, the title to which stands of record in the name of said Staacke, is held by him in trust for plaintiff, and requiring a conveyance thereof to him by Staacke. The defendants, by answer and cross-complaint, alleged that while the title to the land was held by Staacke in trust for plaintiff, it was also held by him as security for certain advances made by Thomas Bell in his lifetime, at the instance and for the benefit of plaintiff, and asked that the claim of the estate against the land be enforced by a sale thereof. Upon a former trial, the trial court, while finding that plaintiff was indebted to the estate of Thomas Bell in the sum of $52,120.15 for money advanced and loaned him by Thomas Bell, also found that the land was held by Staacke in trust solely for plaintiff, and not as security for any indebtedness due from him to the estate. It therefore gave personal judgment only in favor of the estate against plaintiff for the said amount, and directed a conveyance of the land by Staacke to plaintiff. The defendants appealed from the judgment and from an order denying their motion for a new trial. The appeal from the judgment was dismissed on the ground that the same had been prematurely taken. (Bell v. Staacke,
It is contended that the evidence on the retrial was insufficient to sustain any of the material findings in favor of defendant. An examination of the four hundred and sixty-six pages of the printed transcript containing the evidence given on the retrial, shows that the evidence before the court was practically the same as that given on the former trial. Most of the testimony given consisted, by stipulation, of transcriptions of the reporter's notes taken at the former trial, and the additional evidence introduced did not materially affect the situation. The evidence was amply sufficient to support all the material allegations.
The brief of counsel for plaintiff contains a statement of facts which they claim were admitted by the pleadings, and which they further claim are in some respects contrary to the findings. This matter was available to plaintiff on the former appeal, in support of the decision on the facts there under review, there having been no change in the pleadings. We have examined the record in the light of this statement of counsel, and find no admission in the pleadings contrary to any finding of fact, unless the pleadings show an admission that on or about March 6, 1889, the plaintiff and Thomas Bell by consent rescinded the agreement relating to the holding by said Thomas Bell, as security for plaintiff's indebtedness, of the Grover notes and mortgages, which agreement is described in the former opinion (
A claim that the superior court had no jurisdiction to retry this case, notwithstanding that it was remanded by this court for a new trial, is based on the fact that the appeal from the former judgment in favor of plaintiff was dismissed. This, it is said, constituted an affirmance of the judgment, preventing the subsequent giving of any other judgment. But a judgment, even although expressly affirmed on appeal, is vacated by an order granting a new trial. (See Swett v. Grey,
There are two hundred and eighty-five specifications of errors in law occurring at the trial made in the statement on motion for a new trial. As to these, all that is said in their brief by counsel for plaintiff is that they "hereby specially and respectfully refer to pages 685 to 703 of the transcript as to the specification of errors in law occurring at the trial and excepted to by the plaintiff, and hereby make said pages of the transcript, and each and all of the specifications of errors of law therein set forth a part of this point and of these points and authorities as if set forth at length herein, and we hereby point out and designate each of said errors so specified as one of the grounds upon which appellants claim the right to a reversal of said order denying a new trial." *548
The portions of the transcript thus referred to contain simply the bare specifications of alleged errors. There is neither in transcript nor brief any reference to the page or folio of the seven-hundred-and-twenty-three-page transcript where any ruling complained of is shown, or any argument in support of the claim that the trial court erred to plaintiff's prejudice in any of these rulings. Under such circumstances we are justified in disregarding such claim altogether. (See People v. Wo,
The order denying plaintiff's motion for a new trial is affirmed.
Sloss, J., and Shaw, J., concurred.