Brandt v. Clark

Works, J. There is a motion in this case to strike out the statement. As is usually the ease, the motion is the result of inattention to the simple provisions of the code by the attorneys for the appellants. The appeal is from the judgment. The point made is, that the paper containing the evidence and the exceptions of the appellants is a statement of the case made in support of a motion for a new trial; that no motion for a new trial was made; and that under section 950 of the Code of Civil Procedure such a statement can only be used on an appeal from the judgment where it has been used in support of a motion for a new trial. This is the language of the section referred to. But counsel for the appellants say the paper relied upon may be treated either as a statement of the case, or as a bill of exceptions. This isastrictiy true. It is entitled “ statement and exceptions,” and might with equal propriety be treated as a statement of the case, a bill of exceptions, or neither the one nor the other. We have never been able to understand why a statement was provided for in the code, and having been provided for, we are equally at a loss to know why it should ever be [639] resorted to in practice. A bill of exceptions has always been a well-known means of preserving exceptions and. bringing up the evidence on appeal. It is a simple and convenient method of accomplishing these results, and is equally applicable to any and all hinds of appeals provided for by the code. (Code Civ. Proc., secs. 646, 653, 661, 950.) If attorneys could be induced to abandon entirely the practice of using or attempting to use a statement of the case, and resort exclusively to a bill of exceptions, much of the uncertainty and confusion that has crept into the practice on appeals to this court might in time be removed, and some degree of order and system in the practice in this respect be reasonably hoped for. As it is, a great portion of the time of this court that should be devoted to the decision of cases on their merits is taken up with these petty questions of practice. As to the question presented by the motion in this case, we have not been able to satisfy our own minds whether the point made is well taken or not. If the language of the section is to be construed literally, a statement prepared on a motion for a new trial cannot be used on an appeal from the judgment unless it has been used in support of the motion. But there is no reason apparent to us why this should be so. We are inclined to the belief that the section should not receive this strict and literal construction, but the conclusion we have reached on the merits of the case renders it unnecessary to decide the point, and we prefer to leave it open for further consideration, if it should ever become necessary. This action was brought by the respondent, as the vendor of real estate, to correct a mistake in an agreement made by her to one of the appellants to convey certain property, and to recover the purchase-money. The defendants denied the mistake alleged by the plaintiff, but in their answer, and by way of cross-complaint, averred another and different mistake, and further alleged [640] that they had tendered payment of the purchase-money as provided in the contract upon receiving a deed for the real estate actually purchased by them. The court found the mistake substantially as alleged by the defendants; that a small portion of the property agreed to be conveyed was not the property of the plaintiff; that the piece not owned by her was of the value of one hundred dollars; that no tender of the purchase-money had been made; allowed the defendants one hundred dollars deduction from the contract price for the tract of land for which they could get no title; decreed a conveyance of the balance, and rendered judgment against the defendants for the purchase-money, with interest, and one half the costs. The defendants appealed from part of the judgment. It is contended that the court below erred,—1. In allowing the defendants a right of way or easement of a certain roadway, or street, instead of a fee in the land over which the road passed. 2. In allowing the plaintiff interest on the deferred payment of the purchase-money from the time it fell due, by the terms of the contract, until the trial. 3. In allowing but one hundred dollars for the strip of land for which plaintiff had no title. 4. In decreeing a certain lot in controversy by reference to a map instead of by metes and bounds, whereby the fee of a certain private roadway is cut off and a certain “drive” inserted, by reason of which the premises are cut in two. 5. The omission in the description of a certain other roadway. 6. The allowance of a less amount of water stock than the defendants were entitled to. 7. In compelling the defendants to pay one half of the costs. Some of these questions depend upon the construction to be placed upon the agreement to convey, and others upon the evidence given at the trial. Upon a careful examination of the agreement and of the evidence, we are of the opinion that the court below did not err in any of the matters complained of. [641] It is claimed that the court erred in excluding certain evidence offered by the defendants, but we think otherwise. There is nothing in any of these objections that makes it necessary or expedient for us to notice or pass upon them, except in this general way. As to the allowance of interest on the purchase-money, whether it should be allowed or not, depended upon whether a tender of the purchase price had been made at the proper time. Upon this question the evidence was conflicting, and the findings should not be disturbed for that reason. But there was no injustice in requiring the defendants to pay interest, as they had been in possession and had the use of the property during all of the time the interest was allowed. Judgment affirmed. Fox, J., and Paterson, J., concurred. Hearing in Bank denied.