Reclamation District No. 556 v. Thisby

HARRISON, J.

The plaintiffs seek by these actions to condemn a right of way over a strip of land belonging to the defendants, for the purpose of constructing thereon a levee and canal. The two actions were tried together as a single cause, and have been presented here in a single record and upon the same argument. Certain issues were submitted to a jury and its verdict thereon adopted by the court, and additional findings were made upon other issues. Hpon these findings the court rendered judgment in favor of the plaintiff, and afterward denied the defendants’ motions for a new trial. From these orders the defendants have appealed. Ho appeal has been taken from the judgments.

The sufficiency of the complaint or of the findings to support the judgment, or the right of the plaintiff to maintain the actions, cannot be considered upon an appeal from the orders denying a new trial.

(Brison v. Brison,

90 Cal. 323.)

The respondent contends that the order of the superior court must be sustained upon the ground that it was without jurisdiction to entertain the motion for a new trial, inasmuch as no proper notice of an intention to make such motion had been given.

[574]

Although certain special issues were submitted to a jury, these issues formed only a portion of the controversy between the parties to the actions, and the remaining issues were tried . by the court and findings of fact made by it thereon, upon which, together with the answers of the jury to the questions submitted to them, the court rendered its judgment in favor of the plaintiff. The “actions” were therefore tried by the court, and under section 659 of the Code of Civil Procedure until the court had rendered its decision, it was not competent for either party to give notice of its intention to move for a new trial. The notices of intention to move for a new trial were given and filed November 1, 1897, while the decision by the court was not made until April

21,

1898. These notices were within ten days after the jury had given their answers to the special issues submitted to them, but as the “actions” were not tried by a jury, the notices were premature and gave to the court no power to act upon the motion which should thereafter be made under the notices.