Nelmes v. Wilson

SEARLS, C. This action is brought to annul a contract for the purchase of a.lot of land in the city of Pasadena, county [268] of Los Angeles, entered into between the assignor of plaintiff and grantor of defendant on the thirty-first day of August, 1887, and to recover back so much of the purchase money as had been paid on account of such contract. Defendant answered, admitting the execution of the contract, and denying most of the other allegations of the complaint. He also filed a cross-complaint, asking for the specific performance of such contract, and judgment for the amount remaining due thereon. At the trial a nonsuit was ordered against plaintiff, and defendant had final judgment in his favor as prayed for 'in his cross-complaint. The appeal is from the final judgment, supported by a bill of exceptions. Said judgment was rendered February 13, 1892, but not entered until March 8, 1892. The appeal was taken May 6, 1892, more than sixty days after the rendition of the judgment, and within sixty days of its entry. Section 939 of the Code of Civil Procedure provides that an appeal may be taken from a final judgment commenced in the court in which the same is rendered within one year after the entry of judgment. “But an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment.” Under the rule enunciated in Schurtz v. Romer, 81 Cal. 244, 22 Pac. 657, we are precluded from reviewing the evidence contained in the bill of exceptions for the reason that the appeal was not taken within sixty days after the rendition of the judgment. The record fails' to show that any exception was taken to the action of the court in granting the nonsuit. An error in granting a nonsuit is an error in law, and must be excepted to, or it will not be reviewed on appeal: Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Flashner v. Waldron, 86 Cal. 211, 24 Pac. 1063; Warner v. Darrow, 91 Cal. 310, 27 Pac. 737. The findings are within the issues made by the pleadings and support the judgment. The judgment appealed from should be affirmed. We concur: Belcher, C.; Temple, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.