Calderwood v. Peyser

Citations

• 42 Cal. 110

Syllabus

<p>Order Striking New Trial Statement prom Files.—Where a statement on motion for new trial was filed in time, but not served on the opposite party, and for this reason the Court, on motion, struck it from the files: held, that such striking from the files was error.</p> <p>Appeal prom Order.—An appeal may be taken from an order made after judgment striking a statement on motion for a new trial from the files.</p> <p>Case Overruled.—Quivey v. Gambert, 32 Cal. 305, on the point that the Supreme Court has no jurisdiction of an appeal from an order made after final judgment, unless such order followed the judgment, not merely in time but also in logical sequence, overruled.</p> <p>Time por Appeal prom County Court in Case Appealed prom Justice’s Court.—Where an action for unlawful detainer was originally commenced in April, 1863, before a Justice of the Peace, and afterwards appealed to the County Court, and while pending there the Acts of December 23d, 1863, and April 4th, 1864 (Stats. 1863-4, pp. 1, 399), for the transfer and changing of the original jurisdiction in such cases, took effect: held, that the jurisdiction of the County Court did not cease to be appellate, or become original; and that therefore an appeal from a judgment therein must be taken within ninety days.</p> <p>Set-Opp op Executions—Parties must be the Same.—An execution in favor of Peyser and against Calderwood cannot be set off against an execution in favor of Calderwood and Douglass (his former wife) against Peyser—the apparent fact being that the parties to the two executions are not the same.</p> <p>Statement on Motion eor New Trial never to be Stricken Out.— While a motion for a new trial may be denied, for failure to serve the statement on the opposite party, an order striking such statement from the files cannot be properly made under any circumstances. Such statement need not be served on the opposite party.</p>