Baum v. Roper
Before: Shaw
Synopsis
Appeal from Judgment—Review.—Where an appeal, though taken within proper time after the entry of the judgment against the appellant, was taken more than four years after its rendition, the objection that the evidence does not support the decision of the trial court cannot be considered.
Id.—Construction of Findings—Recovery of Real Property in San Francisco—Defense of Statute of Limitations—Act of 1864.— In an action to recover real property in San Francisco, where the answer pleaded that the action was barred by the provisions of section 318 of the Code of Civil Procedure, and also pleaded the act of March 5, 1864, a finding that the action is not barred by the provisions of section 318 is equivalent to a finding against the truth of the allegation in the answer under the act of March 5, 1864, 'that neither plaintiff nor his privies in estate have been in possession of the property within five years next before the beginning of the action, and the omission specifically to find on such allegation is not material.
SHAW, J.
This is a second appeal from the judgment rendered in the superior court on February 6, 1897. The judgment as rendered was against all the defendants, but the clerk, by inadvertence in making the entry thereof, failed to insert the name of the present appellant, David J. Spence, in the judgment as entered. This omission was not observed, however, at the time, and all the defendants joined in an appeal to this court, and the judgment was affirmed. (See
Baum
v.
Roper,
132 Cal. 42.) In the subsequent decision in
[117]
Spence
v.
Troutt,
133 Cal. 605, (erroneously reported as
Spencer
v. Troutt,) it was held that, so far as Spence was concerned, the first appeal, although the opinion showed a full consideration of all the points in the ease, and was rendered after hearing argument in his behalf, was nevertheless a nullity, because as to him the judgment was not entered, and this court could not acquire jurisdiction of an appeal taken from a judgment before the entry thereof, and that Spence had the right to take an appeal within six months from the time of the amendment inserting his name therein. This amendment was made on May 29, 1901, and this appeal was taken on June 7, 1901.
Inasmuch as this appeal was taken more than four years after the
rendition
of the judgment, it is apparent that we cannot consider the objection that the evidence does not support the decision of the trial court. (Code Civ. Proc., sec. 939, subd. 1.) We have, however, re-examined the evidence and reconsidered the points presented on the first appeal and decided by this court in
Baum
v.
Roper,
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