77 P. 762 | Cal. | 1904
This is an appeal from an order denying the defendant's motion for a new trial. The action is to enforce *99 an alleged lien upon a mining claim belonging to the defendant, for services as a watchman, alleged to have been performed by the plaintiff for the defendant, amounting to the sum of six hundred and thirty-seven dollars.
The defendant attempts to raise the point that a person engaged as a watchman of a mine is not performing "labor in any mining claim" so as to be entitled to a lien under section 1183 of the Code of Civil Procedure, although the work of mining therein or development thereof may be in progress. This question cannot be raised upon this appeal. It depends upon the conclusions of law to be deduced from the facts found by the court, or upon the sufficiency of the facts stated in the complaint to constitute a cause of action; neither of which points can be considered upon an appeal from an order denying a motion for a new trial. The only questions which can be here considered are those arising upon the specifications of insufficiency of evidence and of errors of law contained in the bill of exceptions. None of these specifications involve this particular question.
The plaintiff contends that the grounds of the motion for a new trial do not appear in the record, and for that reason he claims that the order denying the motion for new trial cannot be reviewed by this court, and that for the same reason the motion was properly denied by the court below. It must be conceded that it is necessary for a party moving for a new trial to state to the court to which the motion is addressed the grounds of the motion; otherwise, this court cannot review the order made thereon. The statute specifies a number of reasons upon either of which a motion for a new trial may be granted. There may be ample grounds for granting a new trial for one reason, and none whatever for another. Parties are not bound to include in their motion all of the reasons given in the statute, and usually they do not do so. To enable this court to review the action of the court below, the record must show precisely what action was invoked in that court, and the precise ruling that was made therein, and, consequently, it is necessary to state in the motion the particular reasons upon which it will be based. This is the effect of the decisions in Holverstot v. Bugby,
One of the specifications of error is, that the court refused to exclude from the deposition of the defendant two exhibits attached thereto, consisting of two contracts signed by the defendant. In admitting this evidence we think the court erred to the prejudice of the defendant. It appeared from the evidence that the alleged contract, under which the services were performed, was not made by the defendant personally, but that the plaintiff was employed by one Patrick Clinton, who, he alleges, was the agent of the defendant for that purpose. There was no competent evidence introduced to prove the agency of Clinton. Both Clinton and Hawley testified positively that he was not the agent, and was not authorized by Hawley to employ the plaintiff to perform the services sued for. Clinton testified in substance that he engaged the plaintiff to perform the services at the request of Allison Wheeler, and not at the request of Hawley. The only evidence of any consequence tending to show the agency of Clinton consisted of the testimony of witnesses to the effect that they supposed that Clinton was such agent; that he was generally reputed in the vicinity to be the agent; and that Wheeler claimed to be, and was supposed to be, such agent. Some *102
of this evidence was admitted without objection, and the objections that were made to other parts of it are in such form that we cannot consider the competency of the evidence. The case, so far as this evidence is concerned, comes within the rule that where incompetent evidence tending to prove a fact is admitted without objection, the question of its competency cannot be considered upon a specification that the evidence was insufficient to prove the fact. (McCloud v. O'Neal,
We do not think it necessary to consider the other points in the case.
The order denying the motion for a new trial is reversed and the cause remanded.
Angellotti, J., and Van Dyke, J., concurred.