Peabody v. Phelps

Citations

• 9 Cal. 213

Syllabus

<p>The time within which a notice of motion must be filed to set aside the report of a referee, and a statement be prepared for that purpose, will depend on the character of the reference; whether it be special, to report the facts, or general, to report upon the whole issue.</p> <p>In the former case, the report has the effect of a special verdict; in the latter, it stands as the decision of the Court, and judgment may be entered thereon, exceptions taken and reviewed, as if the action had been tried by the Court.</p> <p>Upon facts found, whether by report of the referee, or special verdict of a jury, the direct action of the Court must be invoked before judgment can be entered. Hence, the time within which the notice of motion to set aside the report or verdict must be given, should date from the filing of the report, or the rendition of the verdict.</p> <p>But where an action is tried by the Court without a jury, or the whole case is referred to a referee, judgment follows immediately as a conclusion of law upon the facts found, and the time within which the notice of the motion should be made, dates from the entry of the judgment. '-t</p> <p>A party is not bound by a judgment rendered in an action of ejectment where he has \\ not received legal notice of the action. Such judgment is not evidence against him of paramount title in the plaintiff in ejectment. Mere cognizance of the existence of the action is not legal notice. To be available, the notice must apprise the party, whose rights are to be affected, of what is required of him, and the consequences which may z follow if he neglects to defend the action.</p> <p>An action for a false and fraudulent representation as to the naked fact of title in the vendor of real estate cannot be maintained by the purchaser, who has taken possession of the premises sold, under a conveyance with express covenants.</p> <p>All previous representations pending the negotiation for the purchase are merged in the conveyance. The i