Lewis v. Kelton

California Supreme Court

Lewis v. Kelton

58 Cal. 303, 1881 Cal. LEXIS 210

CourtCalifornia Supreme Court

DecidedJuly 1, 1881

DocketNo. 7,177

StatusPublished

Cited by2 cases

This text of 58 Cal. 303 (Lewis v. Kelton) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. Kelton, 58 Cal. 303, 1881 Cal. LEXIS 210 (Cal. 1881).

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Opinion

Ross, J.:

This cause was tried in the late Third District Court, County of Alameda, and resulted in a judgment for the plaintiffs. The defendants made a motion for a new trial, based on a statement of the case. The motion was heard before the Superior Court of that county, and resulted in the entry of an order granting a new trial, on the ground that the disputed premises constituted the homestead of the defendants, and that the statement did not show that the deed from them to S. S. Lewis (the plaintiffs’ predecessor) was ever acknowledged by the grantors as required by the statute. But the learned Judge who granted the motion overlooked the fact that the trial Court found that the deed to Lewis conveyed the premises, and that this finding was not attacked by the moving parties in their specifications of error, even as permitted to be amended.

The finding that the deed conveyed the premises necessarily included a finding of every fact essential to such conveyance. As this finding of the Court was not assailed, it was not necessary for the statement to contain the evidence in support of it.

Order granting a new trial reversed.

McKinstry, J., and McKee, J., concurred.

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Ross, J.:

This cause was tried in the late Third District Court, County of Alameda, and resulted in a judgment for the plaintiffs. The defendants made a motion for a new trial, based on a statement of the case. The motion was heard before the Superior Court of that county, and resulted in the entry of an order granting a new trial, on the ground that the disputed premises constituted the homestead of the defendants, and that the statement did not show that the deed from them to S. S. Lewis (the plaintiffs’ predecessor) was ever acknowledged by the grantors as required by the statute. But the learned Judge who granted the motion overlooked the fact that the trial Court found that the deed to Lewis conveyed the premises, and that this finding was not attacked by the moving parties in their specifications of error, even as permitted to be amended.

The finding that the deed conveyed the premises necessarily included a finding of every fact essential to such conveyance. As this finding of the Court was not assailed, it was not necessary for the statement to contain the evidence in support of it.

Order granting a new trial reversed.

McKinstry, J., and McKee, J., concurred.

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Bluebook (online)

58 Cal. 303, 1881 Cal. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-kelton-cal-1881.

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