Garvitt v. Armstrong

1 Cal. Unrep. 213

• Court: California Supreme Court
• Decided: June 5, 1865
• Docket: No. 429
• Status: Published

Opinion

SAWYER, J.

Respondent claims that the right to move for a new trial was waived, because the notice was not given till nineteen days after the filing of the findings and entry of judgment. But the cause was tried without a jury, and it nowhere appears that notice of the filing of the findings was ever served on the defendants. Under section 195, they had ten days after receiving written notice of the filing of the findings within which to give their notice.

He next insists that there is no valid statement on motion for new trial, for the reason that the statement contains no sufficient specification of the grounds upon which defendants intended to rely. The statement is certainly very carelessly and loosely made up.

As to appellants’ points: The complaint is very wordy, and not by any means a model pleading. But upon the whole, we think it states a cause of action.

The answer does not, in our opinion, sufficiently aver any affirmative matter presenting any new material issue that required a replication. No question appears to have been made in any form on this point in the court below.

There is but one point upon the sufficiency of the evidence that can, with any show of reason, be claimed to be specified with sufficient particularity in the statement to entitle it to notice. Upon that point the evidence is such that we cannot disturb the finding.

We see no error in the record that would justify a reversal of the judgment. It is therefore affirmed.

We concur: Currey, J.; Rhodes, J.; Shafter, J. Sanderson, C. J., having been of counsel, did not sit on the hearing of this cause.