Gumpel v. Castagnetto

Citations

• 97 Cal. 15
• 31 P. 898
• 1892 Cal. LEXIS 748

Syllabus

<p>Appeal — Order Refusing New Trial — Notice Piled too Late — Dismissal —• Affirmance of Order. — A motion to dismiss an appeal from an order denying a motion for a new trial, upon the ground that the notice of motion for a new trial was not given in time, is not proper practice. In such a case, the objection to the notice of motion is a proper matter for consideration on the hearing of the appeal, and if the notice has not been filed in time, and the record shows that objection is properly made thereto, and not waived, the order denying the new trial will be affirmed without looking further into the record.</p> <p>New Trial — Notice of Decision — Time for Notice of Intention. — A notice, “that a decree, a copy of which is herewith served upon you, has been this day entered in the action in accordance with the decision rendered ” by the court upon a previous date, giving the substance of the decree, is a sufficient notice of the decision, under section 659 of the Code of Civil Procedure, and the notice of intention to move for a new trial must be served and filed within ten days thereafter, if the time therefor is not extended.</p> <p>Mortgage by Deed Absolute — Action to Compel Reconveyance upon Payment — Pleading — Sufficiency of Complaint. — A complaint which seeks to procure a decree compelling the defendants to reconvey to the plaintiff a certain city lot formerly conveyed by plaintiff to the defendants by a deed absolute in form, and which alleges that the plaintiff understood that the conveyance was given as security for a certain sum of money, and that she “never intended to make or execute a conveyance absolute to defendants, or to either of them, but was led to believe by them that such paper, purporting to be a deed as aforesaid, was simply a mortgage fro secure the said payment,” is sufficient to support a decree adjudging that the conveyance was made to defendants as security for certain moneys, and that defendants reconvey the same upon the payment of