32 Cal. 655 | Cal. | 1867
The plaintiff, the Sheriff of Mendocino County, brought this action for fees alleged to be due him for services rendered in criminal cases in behalf of the county, extending over a period commencing in June, 1865, and ending in February, 1866'. The defendant demurred to the complaint. The demurrer being overruled, an answer was filed meeting the allegations of the complaint either by direct denial or by matters in avoidance. The cause was tried on the 24th of July, 1866, before the Judge, without a jury, which resulted in a judgment for the plaintiff. The transcript of the record shows that, on the 16th of October, 1866, the Judge at Chambers in
The defendant appealed from the judgment, and, as the notice expresses it, “ from the order of the District Judge overruling defendant’s motion for a new trialwhich, in fact, was a result accomplished by the order made.
The plaintiff has interposed an objection to this Court entertaining jurisdiction of the case, because no undertaking on appeal appears to have been executed. It is only necessary to say in respect to this objection, that the Act entitled “An Act concerning appeals in certain cases ” is a complete answer to it. (Laws 1856, p. 26; People v. Supervisors of Marin County, 10 Cal. 346.)
It appears from the bill of exceptions, the object of which was to preserve an exception to the ruling of the Judge dismissing the motion for a new trial, that notice of the findings of the Court was served on the defendant on the 23d of August, and that within ten days thereafter a notice of motion
The question which is presented upon the record is whether the order dismissing the application for a new trial can be sustained or must be reversed. All that is required on the part of the defendant in such cases is to prosecute the motion with due diligence. The statute does not specify the time within which amendments to a statement shall be prepared, nor the time within which the adverse party must agree to the statement prepared in case he does not choose to propose amendments thereto. But as the adverse party is allowed to propose amendments, to the statement, he has by the practice of the Courts a reasonable time for the purpose, and we may well assume that he was reasonably entitled to the same time as the statute, independent of an order of the Court allowing further time, gives to the moving party to prepare and file a statement on his part, which is five days. (Prac. Act, Sec. 195.) Then the defendant could not have moved for a settlement of the statement by the Judge, before the 18th of September, at which time it must be intended the Judge was
The order dismissing the motion for a new trial is reversed
Mr. Justice Sanderson did not express any opinion.