27 Cal. 337 | Cal. | 1865
This case was tried by the Court without a jury, and the findings were filed on the 12th of May, 1864. On the same day notice of the filing of the findings was served on defendants’ attorney. On the 13th of May, on motion of defendants’ counsel, it was “ ordered by the Court that said defendants
But the order does not in terms extend the time to file a statement, and it is at least doubtful whether it can be so construed. The statute recognizes three distinct steps in a proceeding to obtain a new trial. Firstly—A notice of intention to move for a new trial, which must be given within five days after the rendition of the verdict, when the case is tried by a jury, and within ten days after receiving written notice of the rendering of the decision of the Judge, or of the filing of the report of the Commissioner or referee, when tried by such officers, unless the time for giving notice is extended by the Court for a period not exceeding thirty days, when the parties do not consent to a longer period, as provided in section five hundred and thirty. Secondly—Filing and serving
The order appealed from must be affirmed. The first fifty printed pages in the transcript might have been omitted. All that was necessary to constitute the transcript on appeal was the order appealed from, affidavit of Wallace, the notice of motion to strike out, statement on appeal and notice of appeal, which are all comprised in about eleven pages of the transcript.
Order striking out statement on motion for new trial affirmed with costs.
Mr. Justice Rhodes expressed no opinion.