Opinion
Appeal from a judgment of the Superior Court of Alameda County and from an order denying a new trial. F. W. Henshaw, Judge.
COUNSEL:
Chickering, Thomas & Gregory, and C. Harding Tebbs, for Appellant.
J. W. Goodwin, for Respondents.
JUDGES: In Bank. McFarland, J. Van Fleet, J., Harrison, J., and Temple, J., concurred.
OPINION
McFARLAND, Judge
This is an appeal by plaintiff from a judgment in favor of defendants, and from an order denying its motion for a new trial.
The notice of the motion for a new trial is based alone upon "insufficiency of the evidence to justify the decision"; and all the questions raised by the appellant rest upon the insufficiency of the evidence.
Respondents contend that there can be here no review of the evidence, because: 1. The appeal from the judgment was not taken until more than sixty days after it was rendered; and 2. That appellants' notice of intention to move for a new trial was not given in time. Both of these contentions must be sustained. As to the appeal from the judgment, it clearly appears, and is not denied, that it was not taken until more than sixty days after the rendition of the judgment. The facts as to the notice of intention to move for a new trial are as follows: The findings which constitute the decision were filed May 12, 1894. Three days afterward, to wit, on May 15th, the appellant served and filed a notice of a motion, as follows: "That the court having filed its findings in this case, plaintiff moves the court to modify and set aside the findings of fact and conclusions of law based thereon, to wit." The notice stated that this motion would be made on the 21st of May, 1894, or as soon thereafter as counsel could be heard. On the 4th of June, 1894, the said motion was heard by the court, and denied. Thereafter, on the eleventh day of June, 1894, the appellant served and filed his notice of intention to move for a new trial. This was, of course, much more than the ten days prescribed by section 659 of the Code of Civil Procedure after the filing of the findings, and was clearly too late. The right to move for a new trial is statutory, and must be pursued in the manner pointed out by the statute. (Burton v. Todd , 68 Cal. 489.) The position of appellant, that the motion to modify and set aside the findings extended the statutory period within which a motion for a new trial must be made, is not tenable. If that were so, a party could always extend the time at his own volition, by giving notice of motion to modify. In this case the filings filed on the 12th of May were never modified or changed in any respect, nor were any new findings ever made; and it is clear that the time for moving for a new trial commenced to run from the date of the filing of said findings. This same principle was applied in Shinn v. Cummins , 65 Cal. 97, where it was held that "the pendency of defendant's motion to dismiss, vacate, and set aside the pretended service of summons and copy of complaint" did not extend the time specified in the summons for answering the complaint. In the case at bar the judgment was not entered [47 P. 1019] until after the determination of the said motion to set aside the findings, and it is stated in plaintiff's brief that the entering of the judgment was stayed by an order of the court until after the determination of said motion to set aside the findings; and, although we do not observe any statement of that fact in the record, still, if it were so, an order suspending the judgment does not extend the statutory time within which a motion for a new trial must be made.
The appellant contends that there was no notice served on him of the filing of the findings, and that therefore the time for making a motion for a new trial had not expired when such motion was made; but section 659 provides now only that the motion must be made within ten days "after notice of the decision"; and it has been definitely settled that where it appears affirmatively that the party moving for a new trial had actual notice of the decision, no formal service of a written notice is necessary. (Gray v. Winder , 77 Cal. 525; Mullally v. Irish-American Ben. Soc ., 69 Cal. 559; Wall v. Heald , 95 Cal. 365; Dow v. Ross , 90 Cal. 562.)
Of course, where a party in whose favor a decision is made has not given formal notice of such decision, and there is a conflict of evidence as to whether the other party had actual knowledge of the same, this court would not look very closely into such evidence, but where, as in the case at bar, a party makes formal written motion to set aside findings, reciting in his motion that the court had filed the same, he will not be heard to say that he had no notice of such findings. Appellant relies somewhat upon Biagi v. Howes , 66 Cal. 469. That case, however, seems to have been based upon the authority of cases where there was a statutory provision that there must be a written notice of the decision, and upon that ground it was distinguished from the other cases upon the subject in the opinion of the court in Mullally v. Irish-American Ben. Soc., supra; and if it cannot be so distinguished, it must be held as overruled by the later decisions above cited.
The judgment and order appealed from are affirmed.