83 P. 810 | Cal. | 1906
The defendants appeal from a judgment in favor of the plaintiff and from an order denying the defendants' motion for a new trial.
The respondent makes a preliminary objection to the consideration of any of the points arising upon the motion for a new trial upon the ground that the bill of exceptions was not properly settled and is not a part of the record. The judgment was rendered on January 24, 1903. The defendants served on the plaintiff's attorney their proposed bill of exceptions, and thereafter, on March 18, 1903, the plaintiff's attorney served on the attorney for the defendants his proposed amendments thereto. The bill and amendments thereto, thus proposed, were not within ten days thereafter presented to the judge for settlement nor filed with the clerk for the judge. They were filed with the clerk for the judge on March 31, 1903, which was thirteen days after the service. Section 650 of the Code of Civil Procedure requires the party proposing the bill to either present them to the judge for settlement or deliver them to the clerk for the judge within ten days after the service on him of the proposed amendments. The objection made to the settlement of the bill was that the bill and amendments were delivered to the clerk for the judge too late, and that the proceeding for the settlement of the bill consequently lapsed. The facts *453
were that the attorney for the plaintiff, who served the proposed amendments, at that time resided and had his office in San Luis Obispo; that the attorney for the defendants, on whom the service was made, at that time resided and had his office in San Francisco, and the service of the proposed amendments was made by mail, under the provisions of sections
The plaintiff sought to avoid the effect of section
The plaintiff relies on the cases of Heinlen v. Heilbron,
Upon the merits of the case it is clear that the findings and judgment in favor of the plaintiff are erroneous, and that the judgment and order must be reversed. The complaint states a cause of action to quiet the plaintiff's alleged title to certain tracts of land. The defense stated in the answer is in substance that both plaintiff and defendants claim under D.W. Grover and Hannah F. Grover; that *456
the defendants had, by assignment from Kramer, a contract to purchase the lands from the Grovers upon which there was due about six hundred dollars; that by an agreement then made between the defendants, the Grovers and P.B. Prefumo (plaintiff's husband), said Prefumo advanced for and on behalf of the defendants the said sum of six hundred dollars, and therewith paid the balance due under the contract, upon the promise of defendants that they would repay him the said sum; that it was also agreed at the time that the Grovers should convey the lands to said Prefumo, and that Prefumo should hold title thereto for the benefit of defendants and as security for the repayment of said sum of six hundred dollars, and also the sum of about $985 due him from them on account of another lien on or claim against said land; that in accordance with this agreement the Grovers conveyed the lands to said P.B. Prefumo, who thereupon held the same under the agreement as trustee for the defendants; that said Prefumo thereafter, and without consideration, conveyed said lands to the plaintiff, Ada S. Prefumo, and that a part of the indebtedness due said P.B. Prefumo, for which he held the land as security, has been paid, and the balance remains unpaid. The court found that each and every of these allegations of the answer were untrue, except that P.B. Prefumo had conveyed the lands to the plaintiff without a valuable consideration. By proper assignments of the insufficiency of the evidence the defendants challenge these findings. Although there are some particular details in which the evidence varies slightly from the facts alleged in the answer, yet in all substantial respects the averments are supported by uncontradicted evidence. Under the facts alleged and the evidence given, it is clear that the defendants had all the beneficial interest in the lands subject to the claim and lien thereon in favor of P.B. Prefumo for the payment of the sums advanced by him and due under the agreement made by him with the defendants. The defendants were in possession of the lands, so far as they can be said to have been occupied at all, and the plaintiff's right thereto is in effect no more than a mortgage to secure the money due under the agreement. (Walton v. Karnes,
The judgment and order are reversed.
Angellotti, J., and McFarland, J., concurred.