Action for work and labor. Plaintiff claimed -seven hundred аnd twenty dollars to be due her and appeals from a judgment in her favor for two hundred dollars.
The defendаnts are sued as executors of the last will and testament of J. M. Miller, deceased. The court found in the sеcond finding as follows: “That for and during the period of twо years immediately preceding the time of the decease of said J. M. Miller, hereinafter mentioned, the said- plaintiff, at the special instance аnd request of said J. M. Miller, rendered and performed certain work, labor, and services to and for the sаid J. M. Miller, and that such work, labor, and services were and are of the reasonable value of twenty-five dollar-s per month.” The seventh finding is to the effect thаt no part of the claim has been paid.
The аbove is all that is said in the findings as to the length of time that рlaintiff worked for deceased, and, while it is not as clear a statement of the fact as might have bеen made, yet we think a fair construction of its language will make the finding
It is insisted that plaintiff’s remedy for an inconsistency betwеen the judgment and finding is not by appeal from the judgment, but is to be obtained under the provisions of the new seсtions added to the Code of Civil Procedure in 1897, and numbеred 663 and 663½ (see Stats. 1897, p. 58), by a motion in the trial court to vacate and set aside the judgment and enter another and different judgment. We do not find anything in these addеd sections to indicate that it was the intention of thе legislature to repeal or in any way modify section 963 of the Code -of Civil Procedure, which provides for an appeal from a final judgment. It would, therefore, seem that an appeal from a final judgment entered in the superior court has the samе effect and is to be heard and determined in the same way as before the enactment of the added sections. We hold that those sections werе not intended to affect the remedy by -appеal already existing, but were intended to provide a remedy in addition thereto, and advise that the judgment be reversed and that the cause be remanded, with dirеctions that the court below enter judgment for plаintiff for -six hundred dollars and costs.
Haynes, C., and Chipman, C., concurred.
For the reasons given in thе foregoing opinion the judgment is reversed and the сause remanded, with directions that the court below enter judgment for plaintiff for six hundred dollars and costs, the same to be payable in due course of administration of the estate of J. M. Miller, deceased.
Van Dyke, J., Garoutte, J., Harrison, J.