Kuhlken v. Mangini

RICHARDS, J.

The plaintiffs have appealed from a judgment in favor of the defendants in an action to quiet

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title to certain real property described in the complaint, in which action a cross-complaint was filed by the defendant Maria Mangini in her individual capacity and as administratrix of the estate of Luigi Mangini, deceased. Upon the trial of the cause judgment was rendered and entered denying the plaintiffs the relief sought and adjudging that the title to the property be quieted in favor of the defendants upon their cross-complaint. Thereafter the plaintiffs gave notice of intention to move for a new trial upon three grounds, namely, (1) insufficiency of the evidence to justify the decision; (2) that the decision is against law, and (3) errors of law occurring at the trial and excepted to by the plaintiffs. The notice of intention stated that the motion for new trial would be made upon the minutes of the court and that the motion would be called for hearing on May 20, 1927. The cause had been tried and the judgment therein rendered by the Honorable J. D. Murphey, Judge of the Superior Court of Alameda County. Thereafter Judge Murphey was assigned to sit for a season in the District Court of Appeal in and

for

the Second Appellate District, sitting in the county of Los Angeles, and when the plaintiffs’ motion for a new trial came on for hearing on May 20, 1927, Honorable J. J. Trabucco was sitting in the place and stead of Judge Murphey in the Superior Court of the County of Alameda. The motion was continued on the calendar from May 20 to June 3, 1927, on which date Honorable Edward W. Engs, Judge of the Superior Court of the County of Sierra, was sitting in the place and stead of Judge Murphey, and said motion coming on for hearing before him, was again continued to June 10th, and upon that date was again continued until June 24th. Counsel for plaintiffs and defendants were present in court upon each occasion when these several continuances were had, and upon each occasion it was manifest that the motion was in no condition to be heard upon its merits, for the reason that the testimony taken upon the trial of the action had not been written up by the reporter, and that no request had been made by the plaintiffs that it should be so written up or presented to the judge presiding in said court upon each occasion when the motion came on to be heard. Upon several of these occasions the respondents offered in open court to stipulate for the submission of the motion upon briefs to be filed and for the