Gilbert v. Kelly

COOPER, C.

This action was brought in ejectment to recover the possession of certain real estate described in the complaint. The plaintiff claims to be the owner of the same by virtue of a deed from the state, the property having been

[690]

sold to the state for delinquent taxes. The ease was tried before the court without a jury, findings filed and judgment ordered for defendant, which judgment was accordingly entered. This appeal is from the judgment on a bill of exceptions. It is not claimed that the judgment is not the legal conclusion from the facts found, and no objection is made to the form of the judgment. Appellant contends that the evidence is not sufficient to support the findings in certain respects. The judgment was entered on the thirty-first day of May, 1902, and the notice of appeal was served and filed on the thirteenth day of October following, more than sixty days after the rendition and entry of the judgment. It is expressly provided in the Code of Civil Procedure, section 939: “An exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment.” The above provision of the code has been adhered to by this court.

(People

v.

Jones,

70 Pac. 1063, (filed December 16, 1902,) and cases therein cited.) It is claimed by appellant that the court erred in not granting his motion for judgment by default, for the reason that certain orders were made extending time to the defendant in which to answer, and that the orders did not comply with rule 9 of the superior court, and for the further reason that the orders were signed by the “superior judge” instead of the “judge of the superior court.” We have examined the record, and we do not find rule 9 incorporated in the bill of exceptions, nor any evidence to show what was before the court at the time the orders were made; neither are the orders extending time incorporated in the bill of exceptions. But, however this may be, the answer of the defendants was on file. No default had been entered and no motion made to strike out the answer. We must presume that the answer was properly on file and judgment cannot be entered by default, with an answer undisposed of before the court.