Boos v. Byrnes

CHIPMAN, P. J. Action in replevin to recover possession of a certain automobile. Defendant justified the taking as sheriff under execution issued in an action entitled Mary Lazarus v. Simon Boos, alleging that said automobile is the property of said judgment debtor. The cause was tried by the court without a jury and the court made and entered findings and judgment for plaintiff, on December 7, 1916. On December 12, 1916, defendant served and filed notice of a motion to set aside and vacate said findings and judgment on the ground that no notice of the filing of said findings or of the time when said findings would be presented to the judge of said court was served upon defendant, and that defendant did not waive notice of the time when said findings would be presented. The time for hearing said motion was shortened and order made that it be heard December 13, 1916. We do not find in the record *756 any order denying the motion, hut plaintiff seems to treat the motion as having been denied. On December 13, 1916, defendant served and filed notice of appeal from the judgment of December 7, 1916, and now seeks to review the action of the court in denying said motion. Respondent objects on two grounds, both of which are well taken and preclude our considering the order: First, the affidavits in the clerk’s transcript, which were filed on the motion to strike out the judgment, cannot be considered upon this appeal, because they were not certified or otherwise authenticated by the judge of the court as having been used at the hearing of said motion. (Thompson v. American Fruit Co., 21 Cal. App. 338, [131 Pac. 878]; Pouchan v. Godeau, 21 Cal. App. 365, [131 Pac. 879] ; Russell v. Chisholm, 23 Cal. App. 727, [139 Pac. 657].) Second, the said order is itself an appealable order, and cannot be reviewed upon appeal from the judgment. (Code Civ. Proc., secs. 956, 963; McCourtney v. Fortune, 42 Cal. 387; Deyoe v. Superior Court, 140 Cal. 476, 486, [98 Am. St. Rep. 73, 74 Pac. 28]; Bohn v. Bohn, 164 Cal. 532, 537, [129 Pac. 981].) The remaining point urged by appellant is that the evidence does not support the finding and judgment allowing plaintiff $50 damages for the detention of the automobile. Appellant quotes some testimony from which he concludes that $37.50 is the extreme amount shown as damages. There was other testimony in the case fully warranting the finding. The judgment is affirmed. Hart, J., and Burnett, J., concurred.