Gray v. Winder

Sharpstein, J. The judgment was entered August 25, 1874. The appeal was taken more than thirteen years thereafter. An appeal from a final judgment must be taken within one year after the entry of the same. (Code Civ. Proc., sec. 939.) The motion to dismiss must be granted. There is also an appeal from an order denying plaintiffs' motion for a new trial. If there appears in the record any sufficient ground for the denial of the motion for a new trial, the order must be affirmed. The notice of intention to move for a new trial was served and filed on the 6th of November, 1886, a little more than fourteen years after the entry of the judgment. Appellants insist that the notice was given in time, because no notice of the decision of the court had been served on them. The code provides that “the party intending to move for a new trial must, within ten days after the verdict of the jury, if the action was tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention.” (Code Civ. Proc., sec. 659.) Although it does not appear that plaintiffs were at any time served with a formal written notice of the decision [527] of the court, it does appear that they had actual knowledge of it at or about the time it was made. This sufficiently appears by the transcript from which we extract the following:— “August 24, 1874, at eight o’clock, a. m. Court met pursuant to adjournment. Present, the Hon. Sepulveda, judge; T. F. Miller, deputy sheriff, and A. S. Grant, clerk. “Title of court and cause. “Findings for defendants, and judgment to be entered in accordance, and by consent defendants allowed until Wednesday, August 26, 1874, to file judgment. “On motion of plaintiffs, stay of proceedings is granted until October 19, 1874. Plaintiffs object to findings of fact and law this day filed, and ask for further findings. .... Thereupon the court found and made additional findings, .... as asked for by plaintiffs.” It has been held that formal notice of a decision may be waived by the party entitled to such formal notice. (Thorne v. Finn, 69 Cal. 251; Cottle v. Leitch, 43 Cal. 320.) We understand that when a party acts as if he had formal notice of a decision, such acts constitute a waiver of such formal notice. It is a cardinal principle of construction that “the object to be attained” must be kept constantly in view. We think the object to be attained by giving notice of a decision is as fully attained when the party entitled to notice has actual knowledge of the fact, and acts upon that knowledge, as when he has formal notice of it. When an action is tried by a jury, the party intending to move for a new trial must, within ten days after the verdict, without any formal notice of it, give notice of his intention so to move. The only reason which we can now conceive of for not requiring the notice of intention to be given in such a case the same as in other cases is, that where an action is tried by a jury it would barely be possible that both parties would not have actual knowledge of the result. Where an action is tried by the court, [528] or a referee, the liability of the party to be ignorant of the decision for a considerable time after it is rendered is much greater. The object of the law, we doubt not, is to give a party ten days after he has actual knowledge of the decision, within which to give notice of his intention to move for a new trial. Be that as it may, we think the plaintiffs in this case by their acts waived a formal written notice, and that their notice of intention to move for a new trial, given fourteen years after such waiver, was too late. The circumstance of some of the plaintiffs being minors is not entitled to any weight. They commenced and prosecuted the action to a final judgment, and must abide the consequences. Appeal from judgment dismissed, and order denying plaintiffs’ motion for a new trial affirmed. Searls, C. J., McFarland, J., and Paterson, J., concurred.