Towdy v. Ellis

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring. This is an action to recover the possession of personal property, and the defendant, who is the Sheriff of the County of San Francisco, claimed that it was the properly of one Krohe, and that he had levied upon it by virtue of an attachment against him. The defendant recovered judgment against the plaintiff for the possession of the property and for his costs, from which, and from an order overruling a motion for a new trial, the plaintiff appeals. The new trial was denied on the twenty-first day of November, 1862, and the notice of appeal was filed February 10th, 1863, and the defendant accepted service of the notice February 20th. It is objected that the appeal from the order refusing a new trial was not taken within sixty days after the order was made, and therefore the appeal from that order must be dismissed. To this it is replied that the respondent has waived this objection by the terms of his acceptance of the service of the notice of appeal, which is in these words: “Due service of a copy of the within notice is hereby accepted to have been made this twentieth day of February, 1863,” and we are referred to the cases of Tatman v. Barnes (12 Wend. 227) and Struver v. Ocean Insurance Co. (9 Abbott, 23). In those cases it was held that an admission of “ due service of a [658] notice ” is a waiver of the objection that it was not served in time. In this case the acceptance only admits that the notice was duly served at a certain date, and cannot be considered as a waiver of the objection. The appeal from this order not having been taken in time, it will have to be dismissed, leaving the appeal from the judgment remaining. The only statement in the record is the statement on the motion for a new trial, no statement on appeal having been filed. Sec. 195 of the Practice Act, as amended in 1861, provides that this statement, with the affidavits, depositions, etc., shall “ constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial.” The respondent insists that as the appeal from the order refusing the new trial must be dismissed, therefore the statement falls with it and cannot be used for any other purpose. That its use is confined to the determination of the questions involved in that motion. Any statement agreed to by the parties, or duly settled and certified by the Court, becomes a part of the record, the same as a bill of exceptions, demurrer to evidence, or any other mode by which questions of law or matters of evidence were made .part of the record by the old system of practice. A statement is the substitute provided by the code for these former modes of proceeding, which were sometimes quite complicated in their nature, the “bill of exceptions ” under the old- system being still retained. Whenever, therefore, a matter of law or evidence is thus made a part of the record by a proper statement or bill of exceptions, whether such statement be filed on motion for new trial or on appeal, it is properly before this Court, the same as any other part of the record; and when before us it can be used to enable us to review the action of the Court below and determine' whether or not any error has been committed.' If the alleged error occurred prior to or in the rendition of the judgment, and affects its validity, or the validity of any action of the Court prior thereto, then such statement or bill of exceptions can properly be used on an appeal from the-judgment. If, however, the alleged error relates to the action of the Court subsequent to the rendition of the judgment, as an order made on a motion for a new trial, or any other order made after judgment, [659] then such statement or bill of exceptions can only be used on an appeal properly taken from such subsequent order. The appeal from the order refusing a new trial in this case not having been taken in time, the statement in the record can be used to review the action of the Court below only so far as it affects the judgment. The Court may have erred in refusing the new trial, but we cannot review that action, the appeal not having been taken in time. But we still have the right to use the statement in reviewing the action of the Court, so far as it relates to the judgment, the appeal from the judgment having been taken in time. We cannot, therefore, sustain the position of the respondent that the statement is to be entirely disregarded. The first error assigned is that the Court below erred in denying plaintiff’s motion for a judgment on the pleadings, and it is insisted that the denials in the answer are bad and raised no issue; that they are in the alternative and not in the disjunctive, and not specific ; that the denial of the value is only of the precise sum stated in the complaint, and therefore it- is no denial of any lesser sum. It is true that the denial of the value of the property is only of the sum stated in the complaint, and it is, therefore, an admission of any lesser value; but as to the other objections, they are not well taken. The answer specifically denies the most material afiegations of the complaint, and therefore raised issues of fact, to be tried in the proper mode. Such being the case, it can make no difference, so far as relates to this motion for judgment on the pleadings, whether the new matter in the answer was properly pleaded or not, for in either event the Court properly overruled the motion. It is also insisted that the Court erred in refusing to allow parol evidence of the delivery of the goods by the plaintiff to Rrohe. The witness, who. was the plaintiff, was asked how Krohe got the goods, and upon a question by defendant’s counsel he stated that the agreement between them was in writing, and the Court properly refused to let him answer the question, the writing being the best evidence upon that point. The delivery was sworn to by this and several other witnesses without objection. The next point raised is that the Court erred in admitting the record and papers in the suit in which the attachment was issued, [660] on the ground that the facts were not sufficiently pleaded by the answer. This objection is not well taken. These proceedings were sufficiently set forth in the answer. It is not necessary to set forth minutely every fact relating to the suit, in cases of this kind. The defendant called as a witness one Lamott, who testified that he was the Deputy Sheriff who served the attachment, and he related conversations between himself and the plaintiff relative to the sale of the goods by plaintiff to Iirohe. On cross-examination he stated that “ he was Deputy Sheriff and under bonds to the Sheriff,” and thereupon plaintiff moved to strike out his testimony on the ground that the witness was interested, which was overruled, and this is alleged as error. The record does not disclose the terms or character of these “ bonds to the Sheriff,” or whether they made the witness interested in the result of this suit or not. We cannot presume error; it must appear by the record, and there is not sufficient here to establish it. Besides, if the witness was interested, it was as an adverse party in interest, or a person for whose benefit the action was defended, and as the plaintiff had been examined as a witness on his own behalf, he could not object to the competency of the witness under the provisions of Sec. 422 of the Practice Act. We see no error in refusing the instructions asked for by the plaintiff and in the instructions given by the Court and Which were excepted to. The charge given was correct as a proposition of law, and was founded upon evidence before the jury. It is insisted that the Court erred in rendering a judgment in favor of the defendant, because his answer contained no prayer for judgment. If this objection has any force, it should have been raised in the Court below, where the party would have been allowed to amend. It cannot be raised here for the first time. The appeal from the order refusing the new trial is dismissed, at Ühe appellant’s cost. The judgment is affirmed.