McCann v. McCann

SHAW, J.

Action to quiet title. Judgment went for defendants. Thereafter the court made an order granting plaintiff a new trial. Defendants appeal from this order.

The grounds upon which a reversal is urged relate to alleged erroneous rulings in the proceedings for the allowance and settlement of the statement used in support of the motion.

It appears that two actions were pending in the trial court, one of which, numbered 72113, entitled William F. McCann

v.

Mary McCann (an opinion in which an appeal to this court was this day filed, Civ. No. 1181),

post,

p. 567, [129 Pac. 965], was for unlawful detainer; the other, numbered 70875, being likewise entitled, was an action to quiet title. While the eases were tried separately, it was by the parties stipulated that the evidence taken in the unlawful detainer case should, in so far as the court deemed it applicable, be considered as evidence in the suit to quiet title (which is the case at bar now under consideration). Judgment was rendered in both cases for defendants. Thereafter,, plaintiff gave notices in both cases of his intention to move for a new trial upon a state-

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ment of the case. In due time he presented to the court for settlement as a statement in both cases a document wherein it was stated: "This bill of exceptions and the statement of facts herein is made a part of the foregoing statements on motion for a new trial in both cases, having the same title and numbered respectively No. 72113 and 70875.” Defendants objected to the settlement of the proposed statement for use in support of plaintiff’s motion for a new trial in the ease to quiet title, No. 70875, upon the ground that it also purported to be a statement on motion for a new trial in the action numbered 72113 for unlawful detainer, and further, that the testimony and proceedings had in the unlawful detainer case, No. 72113, as disclosed by the statement, were not relevant or material to the action brought to quiet title. These objections were by the court overruled and the document allowed and settled as a statement on motion for a new trial, to be used in support of the motions made in both cases; to all of which defendant excepted.