Wise v. Ballou

HAYNES, C. Claim and delivery to recover possession of five hundred sacks of wheat, or their value. The defendant had judgment and the plaintiff appeals therefrom and from an order denying his motion for a new trial. The only point made by appellant and upon which he rests his case is that the evidence is insufficient to justify the decision. Bespondent makes the point that the sufficiency of the evidence to justify the findings and decision cannot be considered, because the appeal was taken more than sixty days after the entry of the judgment, and more than sixty days after the order denying a new trial. The judgment was entered February 11, 1898, the order denying a new trial was made July 3, 1898, and the notice of appeal was filed and served September 1, 1898, sixty-one days after the order was entered. As there is a bill of exceptions in the record, errors of law occurring upon the trial or appearing upon the judgment-roll might be considered upon this appeal, but it is conceded there *46 are none; and the appeal not having been taken within sixty days after the motion for new trial was denied, the question as to the insufficiency of the evidence cannot he considered. (Code Civ. Proc., sec. 939, subds. 1, 3.) The appeal from the order should therefore he dismissed, and the judgment affirmed. Gray, C., and Smith, C., concurred. For the reasons given in the foregoing opinion the appeal from the order is dismissed and the judgment affirmed. Henshaw, J., McFarland, J., Temple, J.