Mahoney v. Wilson

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This was ejectment to recover a lot in the city of San Francisco.

The complaint contains two counts—the first averring the seizin and possession of plaintiff on or before the twenty-sixth of January, 1856, and ouster by the defendants. The second .count avers that the plaintiff was lawfully entitled to the possession of the lot, and that defendants unlawfully withhold possession, etc.

A general demurrer was filed by defendants to this complaint, and an order appears, reciting that on motion of the plaintiff’s attorneys, the defendants’ attorneys assenting thereto, it is ordered that the demurrer be overruled, with leave of the defendants to answer within ten days.

If there was any defect in the complaint which a general demurrer would reach, this consent to the overruling of the demurrer disabled the defendants to avail themselves of it.

The defendants subsequently answered. The case was referred to a referee, who tried it, and reported a judgment.

The defendants gave notice of a motion for new trial on the fourth of March, 1858. We see in this record no statement of the grounds for the motion. On the fourth of June, 1858, the motion was called in the District Court, and the defendants not appearing, the motion was denied. Leave was given to file a statement on appeal, and proceedings stayed for that purpose twenty days. There was no statement on appeal. There appears to be a statement for a new trial, or a paper so [43]entitled in the caption, though it does not appear to be settled or agreed to; but no point is made as to this omission, and we disregard it. But the respondent objects, that, even if this statement be considered, no error is shown of which the appellant can avail himself, for the reason that the defendants cannot now insist upon a motion, which, in effect, they abandoned; nor insist upon the error of the Court in refusing to correct the errors of the Referee, when they failed to point out such errors, or even assign or indicate them below; and we think the point well taken. It would be equally unjust to the District Judge and to the opposite party, to allow a blind motion to set aside a judgment based on a long and complicated state of facts, especially ivhen the case was not tried by the Judge before whom the motion was made, and compel him to look all through the record to discover errors which would vitiate the finding; and this without the aid of a suggestion as to where the error was, or in what it consisted. We must consider, in such a case, the failure to prosecute the motion as a waiver of it.