Root v. Daugherty

THE COURT.

This is an appeal by the defendant from a judgment entered by the superior court of the county of Los Angeles in an action for damages for breach of contract. It appears that the plaintiffs had agreed to sell and the defendant had agreed to purchase a leasehold interest in a bungalow, together with certain household furnishings, for the sum of $8,000. The contemplated sale was not consummated and the plaintiffs instituted this action to recover the sum of $4,675 as damages, alleging in their complaint that the defendant had wrongfully breached said agreement. By way of answer the defendant alleged the inability of the plaintiffs to perform their part of the agreement. After trial the plaintiffs were awarded $1,500 and

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costs. This appeal was thereupon prosecuted by the defendant. As grounds for the reversal of said judgment he urges that the complaint fails to state a cause of action; that the findings of fact and conclusions of law are contrary to law and to the evidence, and that the plaintiffs failed to prove damage. Said appeal was thereafter placed upon a special calendar of this court upon an order to the respondents to show cause why the judgment herein should not be reversed, or that such order be made as might be meet in the premises. At the time of the placing of said cause upon said calendar, and the entry of said order, it appeared that the appellant’s brief had been filed herein but that no brief on behalf of the respondents had been filed, although the time for the filing of such brief under the rules of this court had long since expired. Upon the calling of said calendar counsel for the respondents appeared and requested that this court of its own motion dismiss the appeal on the ground that the notice of intention to move for a new trial was filed more than sixty days after the entry of judgment.

In view of the conclusion we have reached we do not find it necessary to pass upon the contentions urged by the appellant for a reversal of the judgment. And, in passing, it may be said that the suggestion of respondents’ counsel looking to a dismissal of the appeal is without merit, for the record herein discloses that the notice of intention to move for a new trial was filed ten days prior to the entry of judgment, and not, as stated by respondents’ counsel, more than sixty days thereafter. We are of the opinion, however, that said notice of intention to move for a new trial was prematurely filed and therefore ineffectual for any purpose. Chronologically the history of this litigation reveals that the notice of intention to move for a new trial was filed on June 13, 1924. Thereafter, and on June 20, 1924, the findings of fact and conclusions of law were signed and filed. On June 23, 1924, the judgment was duly entered. Subsequently, and on October 23, 1924, the motion for a new trial was denied. The notice of appeal from the judgment was filed on November 21, 1924. It is apparent from the foregoing that the filing of the notice of intention to move for a new trial preceded by seven days the signing and filing of the findings of fact and conclusions of law.