59 P. 791 | Cal. | 1899
Action to abate a certain dam and enjoin the diversion of water, with damages. As conclusion of law, the court found that plaintiff was entitled to take nothing by the action and that defendants were entitled to judgment for their costs, and judgment was accordingly entered. The court made an order granting plaintiff's motion for a new trial, from which defendants appeal.
1. Appellants contend that the court abused its discretion in granting the motion upon a record showing laches by the moving party in making his application.
We do not think it necessary to state the facts presented by respondent as accounting for the delay complained of. The record contains nothing to show that appellants, at the hearing of the motion, made the objection now urged.
The code does not prescribe the time within which the application for a new trial shall be heard further than to provide that it "shall be heard at the earliest practicable period after notice of the motion," etc. (Code Civ. Proc., sec.
2. It is claimed that the motion was heard on a skeleton statement and should have been denied for that reason. (CitingReclamation Dist. v. Hamilton,
3. It is contended that all the parties necessary to the hearing were not before the court on May 6, 1898, when the court heard the motion, and the court had no jurisdiction to grant the motion.
The contention rests upon the alleged fact that defendant William S. Flournoy, Sr., died on January 4, 1897 — about *359
three months before the motion was noticed to be heard — and that there has been no administration of his estate. Affidavit of the fact was made by defendant J.D. Flournoy October 31, 1898; was served on plaintiff's counsel October 31, 1899, and was filed here November 15, 1899; no motion has been made to substitute any person as the representative of the deceased. Flournoy, Sr., appeared and answered the complaint, but before the trial he, with two other defendants, Painter and Isaac Slippey, withdrew his answer and filed an answer disclaiming all interest in the subject of the controversy, and alleged that all his acts in diverting and using the waters involved were done as the agent of his codefendants William S. Flournoy, Jr., and George R. Flournoy and through their authority. The court made findings as to the defendants who had not disclaimed and found as to Flournoy, Sr., and the other two disclaiming defendants, that they had no interest and claimed none in the water or ditch involved. The judgment, however, is that plaintiff "take nothing as against the defendants . . . . and that the defendants do have and recover . . . . from plaintiff their, said defendants', costs in this action." The papers of plaintiff on the motion for new trial were served upon and service acknowledged by the attorneys of record for defendants; the order granting the motion recites that it was "duly argued by the respective counsel for litigants and submitted to the court for decision"; on April 28, 1898, the attorneys who appeared for defendants at the trial gave notice of appeal from the order. So far as appears, the same attorneys represented the defendants up to the time the transcript was filed — July 19, 1898. After that date the defendants were represented by Messrs. Goodwin Goodwin, one of whom was an attorney for defendants at the trial. Respondent brings to our attention some additional facts which tend to show that appellants knew of the death of Flournoy, Sr., before the motion was heard and failed to call attention to the fact at the hearing of the motion or to notify appellants' counsel until after the transcript was filed here, and showing that respondent had no personal knowledge of Flournoy's death. Respondent claims upon the authority of Moyle v. Landers,
4. At the hearing of the motion the plaintiff presented and asked the court to identify and use the opinion rendered by the judge who tried the case in deciding the same. It was received and forms part of defendants' bill of exceptions. Defendants objected at the time, and now claim that the court erred in its ruling. The opinion of the judge who granted the motion is also made part of the record, from which it appears that he made use of the opinion objected to and based his order, in part at least, upon certain views therein expressed with which he disagreed. The presence of the judge's opinion in the transcript, conceding that it forms no part of the record under section
5. Although the cause was tried by one judge and the order was made by another judge, the latter possessed the same power and was charged with the same duty as though the motion had come before the former. (Garton v. Stern,
The failure to find upon a material issue is no ground for granting a new trial. Whether the judgment is authorized by the pleadings or findings is a question not involved in a re-examination of the facts (Riverside Water Co. v. Gage,
Plaintiff claimed the right to the waters of Pine creek in Modoc county both as riparian owner of the lands through which the creek runs and as an appropriator of the waters. Plaintiff sought to enjoin defendants from maintaining their dam located in Pine creek, above plaintiff's point of diversion and above his riparian lands, and from diverting the waters of said creek through their ditch leading from said dam, and prayed that the said dam be permanently removed. Defendants state in their brief that they "did not plead title by adverse possession, but merely the bar of the statute to plaintiff's cause of action. The plea was defensive merely, and would not support a judgment for defendants to any amount of water." Nevertheless, defendants' evidence was directed to their prescriptive right by prior appropriation and user for the statutory period and longer. Plaintiff moved upon all the statutory grounds. The record is voluminous, and the briefs discuss with ability and much detail every phase of the case. It is only necessary for us to discover whether any of the grounds are sufficient, for the rule is well settled that the order granting a new *362
trial will be affirmed if it can be justified on any ground made by statute the subject of a motion for a new trial; and this court is not confined to the ground on which the court below placed its order, for, as was said in Kauffman v. Maier,
We advise that the order be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. McFarland, J., Temple, J., Henshaw, J. *363