Mahoney v. Caperton

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring. There is nothing before the Court in this case but the judgment roll. The proceedings on the motion for a new trial were irregular and void. Notice of the motion was given one day before the judgment and six days after the filing of the report of the Referee. If the trial terminated with the filing of the report, the notice was not given in time; [315] if it continued, in contemplation of law, until the entry of the judgment, the notice was premature. In either case, it was ineffectual for any purpose. The statement on appeal was not served within the time required by the statute. The judgment was rendered on the twenty-seventh of July, 1859, and the statement was served on the tenth of November. It is true, the motion for a new trial was not overruled until the twenty-second of October; but even if that motion had been properly before the Court, it could not have operated to extend the time for the service of the statement. The only error appearing upon the judgment roll, is in that portion of the judgment which directs a sale of certain shares of the capital stock of the Bear River and Auburn Water and Mining Company, and the application of the proceeds. These several shares were not pledged as security for the same debt, and it was error to order a sale in gross and direct the application of the proceeds to the payment of the entire indebtedness. To this extent the judgment must be reversed, but it is affirmed in other respects. Upon the return of the cause, the Court below will amend the judgment in conformity with this opinion. Ordered accordingly.