Union Lumber Co. v. Sunset Road Oil Co.

Appeal from Judgment—Time of Taking—Review.—An appeal from the judgment taken within six months, and more than sixty days from the time of its entry, was taken in time; but, although the sufficiency of the evidence to sustain the decision cannot be reviewed thereon, such appeal is effectual to secure to the appellant a review of any alleged error of law occurring at the trial.

Id.—Validity of Appeal from Order Denying New Trial—Notice More Than Sixty Days After Entry.—Though an appeal taken more than sixty days after the entry of the order would be too late, under the provisions of section 939 of the Code of Civil Procedure, yet when measured under the provisions of section 941b thereof, such appeal is valid and in time when the record shows no notice to the appellant of the entry of such order.

Id.—Construction of Code as to Appeals—New Method Applicable to Appeals Under Old Method.—The provisions of section 941b, dealing with the new or alternative method of appeal, are also applicable to an appeal assumed to be taken under the older method; and in order that the time within which an appeal from a judgment or order shall be made to commence to run, the appellant must be given notice of the entry of the judgment or order.

Id.—Absence of Evidence of Notice in Record—Burden upon Respondent to Show Service.—In the absence of any evidence of notice to appellant furnished by the record, the burden is upon the respondent to show that a notice of the entry of the judgment or order has been given, and the time thereof. Where, in this ease, there appears nothing in the record from which it can be determined whether any notice was ever given of the order of the court denying appellant’s motion for a new trial, the appeal therefrom must be treated as having been regularly taken, and in time.

Id.—Action fob Lumber Sold and Delivered—Current Market Price —Support of Findings—Reasonable Value and Balance Due— Refusal of Nonsuit.—In this action for lumber sold and delivered, where the evidence shows that the custom of dealing between the parties was the usual and ordinary custom between a vendor of merchandise and his vendee, and that the understanding was that the lumber sold was to be charged for from time to time at the current market price, which would be the reasonable value thereof, it is held that findings as to the reasonable value of all the lumber sold, the credits allowed, and the balance due, are amply supported by the evidence, and that the court properly refused to grant a motion of defendant to nonsuit the plaintiff.