Dominguez v. Mascotti

74 Cal. 269 | Cal. | 1887

Hayne, C.

The notice of motion for a new trial was given before the findings were signed, and was therefore premature and ineffectual. Under the present system the findings constitute “the decision.” Until the findings are signed and filed there is no decision, and nobody is “aggrieved,” within the meaning of section 657 of the Code of Civil Procedure. That a premature notice of motion is ineffectual has frequently been decided. (Mahoney v. Caperton, 15 Cal. 313; Bates v. Gage, 49 Cal. 126; Hinds v. Gage, 56 Cal. 487; Spottiswood v. Weir, 66 Cal. 529.)

It is true that the notice of motion is not a part of the record on appeal. (Girdner v. Beswick, 69 Cal. 112; Hook v. Hall, 68 Cal. 23.) But if for that reason the notice printed in the transcript cannot be looked at to see when it was given, then the record does not show that a notice was given or waived; and this of itself was good ground for denying the motion. (Wright v. Snowball, 45 Cal. 654; Calderwood v. Brooks, 28 Cal. 154.) Formerly the notice was part of the record on appeal. But by careless legislation it is no longer so. And this being the case, it must, as stated in Girdner v. Beswick, above cited, “be made to appear as part of the record by a statement or bill of exceptions,” or in some appropriate mode. If it had appeared that the respondent had proposed amendments to the proposed statement without reserving proper objection, the notice of motion would have been waived. But the record does not show this or anything from which it can be inferred that there was a waiver. It cannot be presumed from the naked fact that a statement or affidavits were filed that a notice of motion was given or waived, where the motion is denied.

The question as to the insufficiency of the evidence cannot be considered on appeal from the judgment, because that appeal was taken more than sixty days after the decision.

We therefore advise that the judgment and order denying a new trial be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court.— For the reasons given in the foregoing opinion, the judgment and order denying a new trial are affirmed.