David & Son v. Hurgren & Anderson

Citations

• 125 Cal. 48
• 57 P. 684
• 1899 Cal. LEXIS 797

Syllabus

<p>Action for Breach op Contract—Counterclaim.—An action for the breach of a contract to deliver leather is an action “arising upon contract,” and a counterclaim may be set up by the defendants therein for goods sold and delivered; and it is immaterial whether such counterclaim arises out of the transaction set forth in the complaint under subdivision 1 of section 438 of the Code of Civil Procedure, or is founded upon an Independent contract, under subdivision 2 of that section.</p> <p>Id.—Allowance of Costs to Defendant.—Upon the failure of the plaintiff to recover in the action, costs are to he allowed as a matter of course to the defendant, notwithstanding the recovery, by the defendants of less than three hundred dollars upon their counterclaim.</p> <p>Motion for New Trial—Dismissal—Statement—Review upon Appeal. The dismissal of a motion for a new trial is, in legal effect, a denial of the motion, and when the motion was made upon the minutes of the court, a statement must be prepared by the moving party, in order that the motion may be considered upon its merits upon appeal from tbe order, upon other grounds than those specified in the order dismissing the motion.</p> <p>Id.—Notice of Intention—Receipt by Clerk—Nonpayment of Fees— Insufficient Filing.—A notice of intention to move for a new trial need not be filed by the clerk without the payment of the fees therefor in advance. The mere receipt of such a notice by the clerk on the last day for filing the same did not constitute a filing, where the clerk did not file it on account of nonpayment of the fees therefor; and a filing made three days thereafter, upon payment of such fees, though made as of the day of receipt of it by the clerk, at the request of the moving party, is too late, and cannot save the motion, and it is properly dismissed or denied.</p>