Wilson v. Dougherty

45 Cal. 34

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,446
• Status: Published

Opinion

By the Court:

The appeal is taken from the judgment, from the order striking out plaintiff’s notice of motion for a new trial, and from the order denying the motion for a new trial.

1. There is no error pointed out or appearing in the judgment roll, irrespective of the supposed statement on appeal, which statement, however, not having been settled or certified according to the requirements of the PracticeJAct, must be disregarded.

2. The propriety of the order striking out the notice of motion for a new trial cannot be considered, inasmuch as no statement in support of the appeal from the order is presented. Every presumption and intendment consistent with the record is to be indulged in favor of the order, and so far as the record here speaks it would not be inconsistent with it to presume that the plaintiff consented to the order, in which case, of course, he could not afterwards be heard to complain of it.

3. if or can we examine the order denying the motion for a new trial, inasmuch as the statement in support of the motion for a new trial was not agreed to nor certified.

Judgment and order affirmed.