93 Cal. 411 | Cal. | 1892
The State Investment and Insurance Company executed to plaintiff Griess a policy insuring him against loss from fire of property therein described in the sum of two thousand five hundred dollars, of which amount fifteen hundred dollars was to be paid to
The case was tried by a jury, and upon the trial it was orally agreed by all of the parties that the interest of Meyer in the policy sued upon was $1,202.75, and that the jury should find a verdict for the plaintiff or the defendant without any reference to defendant Meyer. This agreement was taken down by the reporter, but was not entered upon the minutes of the court. The case was submitted to the jury, the court saying to them: “So far as the defendant Meyer is concerned, it is stipulated by counsel that he is out of the case, and also so far as your deliberations are concerned.” The jury returned a verdict in favor of plaintiff for the sum of $2,252.50, and judgment was thereupon entered in favor of the plaintiff for that sum, and against the defendant insurance company, but no mention is made in the judgment of the rights of the defendant Meyer, or of any interest which he may have in the amount recovered by plaintiff. The defendant insurance company moved for a new trial, but did not serve a copy of its proposed statement upon its co-defendant, Meyer, and Meyer thereupon moved the court to amend its minutes by entering therein the oral agreement above referred to, and also to dismiss the defendant’s motion for a new trial because no statement" on motion for new trial had been served upon him; both motions were denied, and from the order denying them the defendant Meyer appeals.
1. The order from which this appeal is taken is not, as to either of its branches, an appealable one.
The refusal to dismiss a motion for a new trial does
In this view of the case, it is unnecessary to determine at this time whether the appellant was entitled to be served by his co-defendant with the proposed statement on motion for a new trial.
2. That part of the order denying the motion to amend the minutes of the court is also clearly not appealable. It was not a special order made after final judgment, within the meaning of subdivision 2 of section 963 of the Code of Civil Procedure. It in no manner affected the judgment or bore any relation to it, either by way of enforcing it or staying its operation, nor did it concern any pending motion in the case itself. It was only the determination of the court that its minutes did not require correction, and the action of a court of record in such a matter is not subject to review by the ordinary process of appeal. The oral statement or admission made by the attorneys upon the trial, and to the court, was evidently made for the purpose of obviating the necessity of introducing evidence to prove the fact admitted, and it was competent for the court to act upon such admission in giving its judgment, although the admission was not entered upon its minutes. The parties acted upon it in refraining to offer such proof, as did also the court in withdrawing such matter
Appeal from the order dismissed.
Sharpstein, J., and McFarland, J., concurred.