De Mitchell v. Croake

Action to quiet title. Judgment, entered August 23, 1910, went for plaintiff, from which, and an order denying his motion for a new trial, defendant appeals.

Pursuant to his notice of intention to move for a new trial, defendant prepared, served, and filed his proposed unsettled statement of the case to be used in support of his motion. Thereafter, on October 17, 1910, plaintiff moved to strike from the files and records defendant's proposed statement upon the ground that the same had not been served within the time prescribed by law, and also moved to dismiss the motion for a new trial. The court granted both motions and made its orders striking from the files and records in the case the defendant's proposed statement of the case, and dismissed defendant's motion for a new trial. Thereupon defendant prepared and, on January 5, 1911, caused to be settled a bill of exceptions wherein was set out and exhibited the alleged erroneous rulings of the court in the making of said orders. Defendant, however, gave no notice of appeal, either from the order striking the statement from the files, or dismissing the motion; hence, conceding the orders to have been the subject of appeal, in the absence of any appeal therefrom, the action of the court in making them cannot be reviewed.

After the making of these orders, from which no appeal was taken, defendant gave a second notice that he would, on November 7, 1910, move the court for a new trial, which motion it was stated in the notice would be made upon a "statement upon appeal which is herewith served upon you attached to the bill of exceptions in said case." This motion was made at the time specified in the notice and by the court denied. Defendant appeals from this order. Not only was there a failure to give notice of the motion within the time prescribed by law, but no statement in support of the motion was ever settled. In the absence of a statement on motion for a new trial, the motion is properly denied and the order denying the motion must be affirmed. (Symons v. Bunnell, 101 Cal. 223, [35 P. 770].) For the purpose of showing error in the making of the order of November 7, 1910, denying his motion for a new trial, appellant has printed in his transcript the statement by order of court stricken from the files and which is embodied in the bill of exceptions allowed January 5, 1911, upon the making of said last mentioned order. Since this proposed statement was never settled, it could not be used upon the hearing of the motion. Incorporating it in a bill of exceptions to be used on an appeal never taken from an order striking it from the files, does not entitle it to consideration as a statement in support of the motion for a new trial. Moreover, the bill of exceptions was not settled and filed until long after the court had denied the motion for a new trial. (Mills v. Dearborn, 82 Cal. 52, [22 P. 1114].)

The only ground urged in support of a reversal of the judgment is that the court erred in admitting certain evidence. There is no record before us upon which these alleged errors may be reviewed.

Judgment and order affirmed.

Allen, P. J., and James, J., concurred.