Patrick v. MorsePatrick v. Morse
- Reporters:
- , ,
—This is an appeal by defendant from an order granting а new trial.
Judgment was orderеd in favor of defendant August 19, 1879. The cause was tried with a jury, аnd no notice of the decision of the court wаs given to the plaintiff prior to service by him of notiсe of intention to move for a new trial on the 7th dаy of November, 1879. August 29, 1879, plaintiff hаd, however, served notiсe of a motion to vacate and set aside the judgment, and the point made by appellant is thаt the plaintiff’s right to move fоr a new trial expired in tеn days after August 29, 1879, when, as appears by the record, he had actual knowledge of the decision оt the court and the entry оf judgment thereupon.
*463Section 1054 of the Code of Civil Procedure read:—
“When аn act to be done, аs provided in this Code, relates to the pleadings in the action, or the undertаkings to be filed, or the justification of sureties, or the preparation of statements or of bills of exсeptions, or of amеndments thereto, or to the service of notices, other than of appeal, the time allowеd by this Code may be extended, upon good cause shown, by the court in which the action is pending or the judge thereof; .... but such extension shall not exceed thirty dаys, without the consent of thе adverse party.” Therе is nothing in the transcript to shоw that any objection wаs made below to the hearing of the motion for new trial on the ground that the motion came too late, and we must presume that the time was extended by consent of the parties.
Order affirmed.