97 Cal. 15 | Cal. | 1892
Judgment went in the trial court for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.
Respondent objects to the consideration of the points made by appellants on their appeal from the order denying the motion for a new trial, and moves to "dismiss said appeal, upon the ground that the notice of motion for a new trial was not given in time. The motion to dismiss, in such case, has been held not to be proper practice; but the objection to the notice of motion is a proper matter for consideration on the hearing of the appeal. (Barnhart v. Fulkerth, 92 Cal. 1 5.) As was said in Quivey v. Gambert, 32 Cal. 309: “If the notice and statement, or either of them, is not filed in time, he [respondent] may safely rely upon such facts as fatal to the motion when brought to a hearing.” Where the notice of motion has not been filed in time, and respondent presents his objection to it at the proper time and in the proper manner, an order denying the new trial will be affirmed here without looking further into the record.
Appellants contend that in the case at bar respondent did not properly present and preserve her objection to the notice; but we think otherwise. The decree was entered January 29, 1890; it refers to a decision rendered December 9, 1889, but as findings were waived and none made, the reference must have been to some oral statement of the judge of what the judgment, would be. On the day of the rendition of the decree, the attorney of plaintiff served on attorney for defendants the following notice: “You will please take notice that a decree, a copy of which is herewith served upon you, has been this day entered in this action, in accordance with the decision rendered by the above court on the ninth day of December, 1889, that defendants reconvey the premises,” etc., giving the substance of the decree. This was a sufficient notice under section 659 of the Code of Civil Procedure. More than ten days thereafter,' on February 12, 1890, defendant served on plaintiff a notice of intention to move for a new trial; and the bill
2. The only other question is, Does the complaint warrant the decree? and we think that it does. The purpose of the complaint is to procure a decree compelling defendants to reconvey to plaintiff a certain city lot formerly conveyed by her to defendants by a deed absolute in form. The decree adjudges that the convey.ance was made to defendants as security for certain moneys, and that defendants reconvey the same upon the payment of such moneys. It is true that the complaint contains certain charges of fraud against defendants, by which it is alleged plaintiff was induced to make the conveyance; but it is also averred that she understood that it was given as security for four hundred dollars, and “that this plaintiff never intended to make • or execute a conveyance absolute to defendants, or to either of them, but was led to believe by them that .such paper, so purporting to be a deed as aforesaid, was .simply a mortgage to secure the said payment of said four hundred dollars to defendants as aforesaid.” These averments, we think, support the decree. The fact that the judgment compels the plaintiff to pay defendants more than the amount named in the complaint is something of which defendants cannot complain.
Judgment and order affirmed.
De Haven, J., and Sharpstein, J., concurred.
Hearing in Bank denied.