Opinion
Department One
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of Fresno County, from an order refusing a new trial, and from an order striking out the notice of intention to move for a new trial.
COUNSEL:
Terry & Terry, for Appellants.
G. A. Heinlen, and Sayle & Harris, for Respondent.
JUDGES: Myrick, J. Morrison, C. J., and McKinstry, J., concurred.
OPINION
MYRICK, Judge
[12 P. 386] Judgment was entered in favor of defendant January 30, 1884. Plaintiffs gave notice of intention to move for a new trial, the motion to be made on bill of exceptions. The bill was served February 12, and settled April 24, 1884. Nothing further was done in the case until October 7, 1885, when the defendant, on notice, moved the court to dismiss plaintiffs' notice of intention, on the grounds, among others, of negligence and delay on the part of plaintiffs in not prosecuting the intention to move for a new trial, and that the same had been abandoned by lapse of time. On the same day plaintiffs submitted their motion for a new trial. On the 22d of October, 1885, the court granted defendant's motion to strike out plaintiffs' notice of intention, and denied the motion for new trial. From this order an appeal was taken.
Whatever would have been within the discretion of the court in ruling on a motion (if made) to dismiss the plaintiffs' motion for a new trial on the ground of laches or failure to prosecute, the court was not justified in striking out their notice of intention. The motion for a new trial should have been granted, on the authority of Triscony v. Brandenstein , 66 Cal. 514. The court erred in confining the proof by plaintiffs of trespasses committed by defendant's cattle to the period of sixty days next preceding the commencement of the action.
The appeal from the judgment has been heretofore dismissed, because not taken in time. The order appealed from, viz., the order granting defendant's motion to strike out plaintiffs' notice of intention, and denying plaintiffs' motion for new trial, is reversed, and the cause is remanded.