Dreyer v. Cole

WASTE, C. J.

This is an appeal from a judgment in favor of plaintiffs quieting their title to real property. Respondents first contend that this court may not consider the reporter’s transcript prepared under the provisions of section 953a of the Code of Civil Procedure, for the alleged reason that the notice for its preparation was not filed within the time provided for by statute. This contention is based on the fact that the notice was not filed within ten days after a motion for a new trial, made in the case, was denied by operation of law by reason of the mandatory provisions of section 6 60 of the Code of Civil Procedure. No notice of such termination of the motion for a new trial was served upon appellants. There is, therefore, no merit in respondents’ contention.

(Anstead

v.

Pacific G. & E. Co.,

201 Cal. 198, 200 [256 Pac. 209] ;

Preo

v.

Roed,

99 Cal. App. 372, 375 [278 Pac. 928].)

On the merits, the main point involved on this appeal is whether or not the finding of the trial court, incorporated in its decree, fixing the boundary line between the appellants’ and respondents’ properties, is supported by the evidence. Appellants denied title in respondents to the portion of land in dispute. From an examination of the description fixing this boundary in the findings and judgment, it is at once apparent that the description therein contained is different from that in the complaint and summons. In the complaint and summons the respondents’ westerly boundary is described as a straight line, but by the findings and decree this line has a different point of beginning and follows an irregular course along certain fences and other monuments. Appellants complain of this variance, respondents having neglected at the trial, upon the true situation developing, to ask leave to amend their complaint. However, we deem this immaterial, if, in fact, there is any evidence to support the finding of the trial court. Appellants contend' there is- no such evidence.

Upon a reference to the deeds constituting respondents’ record title it is apparent that the westerly boundary described therein is the same boundary described in the complaint. It therefore follows that whatever claim respondents may have to the irregular boundary described in the decree