121 P. 309 | Cal. Ct. App. | 1911
Action to recover $967.87, an alleged balance due on account. The complaint avers that plaintiff, at the special instance and request of defendant, performed work and labor and furnished materials in doing sundry carpenter work, the reasonable value of which was $1,467.87, upon *383 which defendant paid the sum of $500. The answer denied the material allegations of the complaint, but admitted the existence of a balance due to plaintiff of $369. Judgment went for plaintiff in the sum of $809.73 and costs, from which defendant appeals.
As disclosed by the record, defendant was fitting up a storeroom in Bakersfield, and entered into a contract with plaintiff whereby the latter was to make certain repairs and reconstruct the front of the storeroom in accordance with certain plans and specifications therefor, as made by one Jones, an architect employed by defendant to prepare the same. Plaintiff entered upon the performance of the work, and after proceeding therewith for a time, was employed to do certain other work in and about the storeroom, which work it appears was to be done by day labor, and as to the performance of which no price was agreed upon. The court found that, after plaintiff had entered upon the performance of this contract, "the plaintiff and the defendant entered into an agreement whereby the said contract was altered, so that the plaintiff agreed to furnish said labor and materials to the defendant as aforesaid, and the defendant agreed to pay therefor the reasonable value thereof." Appellant's contention is that the evidence is insufficient to justify the court in making the finding.
Respondent has filed no points or authorities in opposition to the contention of appellant, his counsel merely suggesting that the appeal should be dismissed for the reason that the same was taken more than sixty days after the entry of the judgment. Hence, it is claimed this court is without jurisdiction to review the decision on the ground that it is not supported by the evidence, in support of which he directs our attention to section 939, Code of Civil Procedure, which provides that only in cases where the appeal is taken within sixty days from the entry of judgment can the sufficiency of the evidence to support the decision be reviewed. This appeal, however, is not taken under section 939, but under the alternative method as provided by sections 941a and 941b, Code of Civil Procedure. The latter section provides that any person having the right to appeal may do so by filing the notice designated therein, which notice "may be filed *384 at any time after the rendition of the judgment, order or decree, but the same must be filed within sixty days after notice of entry of said judgment, order or decree has been served upon the attorneys of record appearing in said cause or proceeding; provided, however, that if no notice of entry of judgment be given, the notice must, nevertheless, be filed, under any circumstances, not later than six months after the entry of the judgment, order or decree." An inspection of the record fails to disclose that any notice of the entry of judgment was ever served upon the attorneys of record appearing in said cause for defendant. Hence, in the absence of the service of such notice, the appeal being taken within six months from the entry of judgment, it was had within due time. Having been taken within time, appellant, by virtue of the provisions of section 941c, Code of Civil Procedure, is entitled to have any question reviewed upon such appeal which could be reviewed upon an appeal taken within sixty days from the entry of judgment and pursuant to the provisions of section 939, Code of Civil Procedure. It thus appears there is no merit in respondent's suggestion.
"The burden of establishing a novation is upon the party who asserts its existence." (Netterstrom v. Gallistel,
Allen, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 5, 1912, and the following opinion then rendered thereon:
THE COURT. — The appeal in this case was properly taken to the district court of appeal, where the judgment in favor of plaintiff was reversed upon the sole ground that a material finding of fact was unsupported by the evidence. Defendant objected in that court to any review or consideration of the evidence on the ground that the appeal was only from the judgment and that it had not been taken within sixty days after notice of the entry thereof. (Code Civ. Proc., secs. 941a, 941b, 941c.) But he furnished no evidence that he had ever given such notice and his objection was for that reason disregarded. We think it was correctly held by the appellate court that the respondent should have furnished proof of the service of a notice which would have prevented a review of the evidence on the appeal. And if he desired relief after judgment from the consequences of his omission to supply the evidence which he offers now in support of his application for a rehearing in this court, he should have sought that relief in the court having original jurisdiction of the appeal, and of all questions essential to its decision. This he failed to do, and by his petition to this court asks, in effect, for a first hearing of a question which should have been first determined in the district court of appeal. We are unwilling to encourage a practice so irregular and so inconvenient.
Rehearing denied. *387