Morcom v. Baiersky

JAMES, J.

Action to quiet title to and for possession of a certain lot of land in the city of Los Angeles. Judgment^, was in favor of defendants. The appeal is from the judgment and from an order denying a motion for a new trial, presented on a bill of exceptions. Insufficiency of the evidence to justify the decision and the ruling of the trial judge in admitting in evidence a certain map are urged as grounds for reversal.

The appeal from the judgment was taken more than sixty days after entry thereof; this appeal, therefore, was taken too late to authorize this court to consider the question of the sufficiency of the evidence to sustain the decision. (Code Civ. Proc., sec. 939, subd. 1.) Nor can the evidence be reviewed to determine the question as to whether or not it is sufficient to sustain the judgment, on the appeal from the order denying the motion for a new trial. It is nowhere, shown in the record upon what grounds that motion was made. Por aught that appears, the ground of insufficiency of the evidence may not have been urged in the court below at the hearing of the motion. The transcript shows the order of the court denying the motion for a new trial, wherein it is

[482]

stated that the motion was presented upon the grounds set forth in the notice of intention on file, but this notice of intention is not made a part of the record; nor does the order of the court show that the motion was presented on the bill of exceptions. Therefore, the decision in the case of

Williams

v.

Hawley,

144 Cal. 99, [77 Pac. 762], is in point, to the effect that in a case where the record is in the state of that which is here presented, the order made on the motion for a new trial cannot be reviewed.

There is left to be considered, therefore, only as to whether or not the trial court committed error in admitting in evidence a certain map which was produced by the witness Solano. The determination of the controversy between plaintiffs and defendants involved in part the question as to whether or not the northerly boundary line of the city of Los Angeles as now located is identical with that line as formerly established. Defendants for a number of years had owned and occupied lot 1 of what are called the Carnal and Reservoir Lands. The plaintiffs are the owners of lot 8 immediately adjoining and south of lot 1. For nearly f ourteen years a hedge ■ of trees has stood along the south boundary line of lot 1 as it was claimed by defendants to be located. Plaintiffs made the claim that this hedge was located too far south and that it included a portion of lot 8 owned by them. The point to be established, therefore, in the case was as to the true location of the boundary line between lots 1 and 8. As lot 1 shown upon the original plat was bounded on the north by the north boundary line of Los Angeles city, as to whether or not any change had1 been made in this north city boundary line became an important matter of evidence in the ease. Some of the surveyors who testified at the trial located this boundary line farther north than it is at present established, and other surveyors testified that the line as at present established was located practically at the same place as it previously had been. Some of the latter witnesses testified to finding rocks which appeared to have been placed by surveyors in different situations at the north of the tract, and which rocks indicated points at and near the north city boundary line as it is at present located. The witness Alfred Solano was then called to identify a map which the court afterward admitted in evidence. The witness was a civil enginéer, and he stated