28 Cal. 151 | Cal. | 1865
This is an action of ejectment. The default of Biley and Burke, two of the defendants, was entered, and the action was tried by the Court as against Brooks, the remaining defendant, and judgment was rendered against all the defendants. Brooks moved for a new trial, and the motion having been denied, all the defendants appeal from the judgment and from the order denying a new trial. Biley and Burke cannot complain of alleged errors of the Court in refusing the new trial, for they were not parties to the motion. They allege that the affidavit of service of the summons is insufficient, because it does not state that they resided in San Francisco. It states that they were served in that county, and it will be presumed, nothing to the contrary appearing, that they resided in the county in which they were served with process. It is also claimed that the summons does not warrant the default, because it does not contain a description of the land sued for. It appears that the three defendants were served with process in the same county, and that a copy of the complaint was served upon Brooks alone. The statute (Practice Act, Sec. 28) does not require the copy of the complaint to be served on more than one of the defendants residing in the county, and therefore the service upon the one, is deemed a service upon all the defendants within the county. In the summons the “ cause and general nature of the action ” is described in these words: “And said action is brought to recover the possession-of certain land and premises, more particularly described in the complaint herein.” The complaint is thus by reference made a part of the summons, and it affords a proper description of the premises. The summons and affidavit were sufficient to authorize the entry of the default.
The plaintiff insists that the order of the Court in denying the motion for a new trial cannot be considered, because the notice of the motion was not served upon him. The record must contain the evidence of the service of the notice, or it must clearly appear from the record that service of the notice
It does not appear, either expressly or by implication, that service of the notice was waived. It appears, from' a notice signed by the plaintiff*, attached to the statement on motion for a new trial, that he offered to return the statement to the defendant’s attorney, for the reason, among others, that the notice of the motion had not been served on him, and it does not appear that the plaintiff proposed any amendments to, or participated in the settlement of the statement. The minutes of the Court show that the plaintiff moved to strike out the motion for a new trial, and the statement. Under these circumstances he cannot be deemed to have waived the service of the notice of the motion.
The notice of the motion not having been served, the Court below had no jurisdiction, of the motion; and the statement on the motion, including the grounds properly resting upon the statement for their support, must be disregarded by this Court on appeal. This leaves the case to stand upon the judgment roll, and we can notice only the errors appearing therein.
The defendant, among his points, assigns for error the order
The further points are made that the Court erred in overruling the defendant’s exceptions for the want of a finding, and his motion to modify the same, and. in ordering judgment without filing any findings. It appears from a paper copied into the transcript, but which forms no part of the judgment roll, or a statement or bill of exceptions, that the defendant, thirteen days after the Court ordered judgment for the plaintiff, and three days after the entry of judgment, excepted to the entry of judgment for the reason that no findings of fact and conclusions of law were filed. But we find no motion that the Court amend the findings, nor any exception of the defendant to the refusal of the Court to file findings after objections made, as prescribed by the Act of 1861, to regulate appeals (Statutes 1861, p. 589); and the transcript shows that subsequently to the defendant’s objections for the want of a finding, the Court filed its findings of fact and conclusions of law, and thus obviated the objection made. The points seem not only not well taken, but destitute of all support.
The only question in the case presenting any difficulty is whether the findings of fact support the judgment. It appears by the findings that the action of Edmond Brooks v. Ross et al„ in which Calderwood and B. C. Brooks were also defendants, was commenced March 14th, 1861, and judgment therein against B. C. Brooks, but not against Calderwood—the action having been dismissed as to him—was rendered November 12th, 1S62, and on the 8th day of May, 1863, B. C. Brooks was dispossessed by virtue of the writ issued upon the judgment. This action was commenced in April, 1863, and it is found that B. C. Brooks entered under a written lease, dated November 13th, 1861, for the term of one year, and that he and the other
Judgment affirmed.