Walker v. Hamburg-Bremen Fire Insurance

Emerson, Justice, delivered the opinion of the court: This is an action upon a fire insurance policy. A jury trial was had wherein the respondents (plaintiffs below) recovered a [110] judgment for $14,940.57. Judgment was entered on tbe 17th. day of March, 1877. A motion for a new trial was filed and served on the 22d of March, stating various grounds not necessary here to enumerate. No affidavit or statement such as is required by §§ 1419 and 1420, Compiléd Laws, was ever filed or served, and the motion for a new trial was brought on to hearing without them. A new trial was denied, and an appeal taken to this court. The appeal was taken on the 21st of April. No statement on appeal was ever prepared and served as required by § 1555 Compiled Laws. There is among-the papers what purports .to be an amended and corrected statement on appeal, which purports to have been filed on the-8th of April, but it was conceded on the argument that the-date of filing is erroneous, and that it was not actually filed until after the twenty days from the date of the entry of the judgment had expired, the time having never been enlarged. It was never served upon the adverse party. When a party who appeals from a judgment does not file and serve a statement on appeal within twenty days from the entry of the judgment his right to make a statement is waived and the case will be heard on the judgment roll alone. Tafferty v. Brownlee, 11 Cal. 182; Mahony v. Capperton, 15 Cal. 313; Ryan v. Dougherty, 30 Cal. 218. Upon the judgment roll we discover no error. The demurrer was properly overruled. The complaint contains all the necessary averments to entitle the plaintiffs to recover. The-complaint is the same in substance as that passed upon by this courkat the January term in the case of Walker Bros. et al. v. Continental Fire Insurance Co. The judgment of the court below is affirmed with costs. SohabfeeR, O. J., and BokbmaN, J., concurred.