96 Cal. 38 | Cal. | 1892
— Defendant appeals from the judgment and order refusing him a new trial.
The action is to quiet plaintiff's title to atract of land. The answer, after certain denials, sets out, as a further answer and cross-complaint, an agreement between the defendant and L. N. Fincher, husband of plaintiff, who, it is averred, owned the land, by which agreement said Fincher, in consideration of one dollar, agrees, at any time within six months, to sell to defendant, or any one he might name, the whole or any part of a tract of 320 acres of land, which included the tract in controversy. The contract reserved the crop then growing, or required compensation therefor at $2.80 per acre. There was a provision for the extension of the time for performance.
It is averred that plaintiff knew all these facts, and
To the answer and cross-complaint separate demurrers were interposed by plaintiff.
An order was obtained making L. N. Fincher a party, and he was duly served.
Before he had appeared herein the case was set down for trial. At the time set, the demurrers had not been disposed of, but counsel for both parties were in court. No objection was made on any ground to the trial, but defendant’s counsel asked and obtained leave to withdraw his cross-complaint, without prejudice to his right to bring an action for damages against L. N. Fincher. Defendant’s counsel then left the court-room, although fully aware that the trial was about to proceed, having concluded, as he says, that it would be better to make the entire suit against Fincher a suit for damages. The plaintiff obtained a judgment quieting her title against defendant, whereupon, having changed his attorneys, defendant moved for a new trial on the minutes of the court and upon affidavits.
The grounds of the motion were: 1. Accident; 2. Surprise; 3. Insufficiency of the evidence; 4. The decision is against law; 5. Mistake, inadvertence, surprise, and excusable neglect; and 6. That the evidence was insufficient to enable the court to find that plaintiff is or was the separate or sole or any owner of the land described in the complaint, or that she had any interest therein.
It is plain that there is nothing in the nature of acci
There is no such ground for granting a new trial as mistake or inadvertence, as distinguished from accident or surprise, already discussed.
There was evidence to sustain the conclusion that plaintiff was the owner of the property. It was secondary,— that is, was not the best evidence of the fact,—but it was not objected to. Ho exception was taken or reserved.
By failing to attend the trial, defendant waived findings. (Code Civ. Proc., sec. 634.) This is a statutory waiver. The fact, therefore, that the judgment erroneously refers to findings, when none existed, is of no consequence. The statute requires none under such circumstances.
The appellant was not injured by the failure of the court to pass on the plaintiff’s demurrer to his answer. (McCarthy v. Yale, 39 Cal. 585.) Perhaps the fact that it had not been disposed of would have been a fact of some importance if defendant had objected to a trial at that
I think the judgment and order should be affirmed.
Foote, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
McFarland, J., De Haven, J., Sharpstein, J.