Mallory v. See

SMITH, C.

The superior court made an order striking from the files the notice of intention to move for new trial. The respondents contend that the notice of intention was too late: 1. Because filed more than six months after judgment; and

2.

Because filed more than ten days after actual notice of the decision.

1. On the first point it is contended that by the expiration of the time allowed for appeal a judgment becomes final, and can no longer be reviewed, either directly or indirectly, by motion for new trial. Hence, it is claimed, the time allowed by section 659 of the Code of Civil Procedure for filing the motion is to be regarded as limited to the period of six months allowed for appeal from the judgment. Numerous sections of the Code of Civil Procedure and several cases are cited in support of this contention, but do not seem to sustain it. Nor is there anything in the section itself to indicate such intention. We must hold, therefore, that—unless by the general principles of the law, in cases of laches—there is no limit of time for filing the notice other than that expressed in the section.

3. No written notice of the filing of the decision was given, but it is claimed that the notice of intention was filed “more than ten days after appellants had actual notice of the decision.” Two affidavits were filed in support of this contention—one by one of the defendants, to the effect that she had informed one of the plaintiffs that judgment had been entered, and that thereupon “both plaintiffs and defendants commenced to use the water” in controversy under, and as prescribed by, said judgment; the other, by one of defendants’ attorneys to the effect that after the judge had decided that plaintiffs were entitled to the use of the water in suit for four, and defendants for three, days in each week an agreement was made between him and one

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of plaintiffs’ attorneys that “plaintiffs’ time should commence, and defendants’ time end, at noon of each Sunday”; and that under this agreement the conclusions of law and judgment so provided. These allegations are not denied.

It can hardly be doubted—if we apply to the case the ordinary rules of evidence—that the plaintiffs had actual notice or knowledge of the decision; that is to say, not necessarily of the date, but of the fact. Plaintiffs’ attorneys were informed of the judge’s decision, and agreed upon terms to be embodied in the written decision and judgment about to be filed, and which were filed accordingly; and immediately thereafter all the parties commenced to use the water as prescribed in the judgment. If, therefore, the rule is as claimed by respondents—that is to say, if the time prescribed by section 659 of the 'Code of Civil Procedure commences to rim from the time of actual notice or knowledge to the party moving for new trial, we would have to sustain the order appealed from.