California Improvement Co. v. Baroteau

Citations

• 116 Cal. 136
• 47 P. 1018
• 1897 Cal. LEXIS 523

Syllabus

<p>Appeal from Judgment—Review of Evidence—Limitation.—There can be no review of the insufficiency of the evidence to justify the decision upon an appeal from the judgment, where such appeal was taken more than sixty days after the rendition of the judgment.</p> <p>New Trial—Right to Move Statutory—Loss of Right—Failure to Serve Notice of Intention in Time Limited.—The right to move for anew trial is statutory, and must be pursued in the manner pointed out by the statute; and where the notice of intention to move for a new trial is not served within the ten days prescribed by section 659 of the Code of Civil Procedure, and the time therefor is not lawfully extended, the right to move for a new trial is lost.</p> <p>‘Id.—Insufficient Extension of Time—Motion to Modify Findings— Order Staying Entry of Judgment.—A party cannot extend the time for service of a notice of intention to move for a new trial, at his own volition; and a motion by such party to modify and set aside the findings does not operate to extend the statutory time within which service of such notice must be made; nor does an order, upon his motion, staying the entry of judgment until after the determination of the motion to modify the findings, extend the time for the service of such notice.</p> <p>Id.—Construction of Code—“Notice of Decision” — Actual Notice Sufficient.—Under section 659 of the Code of Civil Procedure, which provides that a motion for a new trial must be made within ten days “after notice of the decision,” where it appears affirmatively that the party moving for a new trial had actual notice of the decision, no formal service of a written notice by the opposite party is necessary.</p> <p>Id.—Proof of Actual .Notice—Recital in Motion to Modify Findings.—Where a party moving for anew trial has made a formal written motion to set aside the findings, reciting in his motion that the court had filed its findings, he will not be heard to say that he had no notice of such findings.</p>