MacHado v. Kinney

GRAY, C.

Action to ■ quiet title and for damages. Plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

1. The notice of intention to move for a new trial does not appear in the record, hut we infer from the fact that appel

[355]

lants endeavored to have a statement on motion for new trial settled, that the notice of intention specified that the motion for new trial would he heard on a statement of the case. No statement or bill of exceptions to be used on said motion was settled by the court; the order denying the motion for a new trial must therefore be affirmed.

(Sutton

v.

Symons,

100 Cal. 576;

Budd

v.

Drais,

50 Cal. 120;

Symons

v.

Bunnell,

101 Cal. 223;

Henry

v.

Merguire,

106 Cal. 142.)

2. On this appeal we cannot review the action of the court refusing to settle the statement on motion for new trial. The remedy for fhat is pointed out in

Hudson

v.

Hudson,

129 Cal. 141.

3. It is urged that the finding to the effect that there is no strip of land such as claimed by appellants in their complaint is inconsistent with the other findings and with the judgment; and so, indeed, it seems to be. More than' this, it is inconsistent with the issues as framed in the pleadings. All parties to the suit, so far as can be gathered from the pleadings, proceeded upon the theory that there was a strip of land as described in the complaint. The findings and decree deal with and dispose of this same strip of land. We, therefore, think that the finding that there was no snch strip of land is contrary to the admissions contained in the pleadings of all the parties to the suit, and is inconsistent with and contradictory of the other findings in the ease, and should be disregarded as entirely immaterial to the case made by the pleadings.