Mahoney v. Caperton
Before: Cope
Synopsis
Notice of motion for new trial given one day before judgment rendered, and six days after filing the report of the Eefercc to whom the case had been sent to find the facts, is ineffectual for any purpose. If the trial terminated with the filing of the report, the notice was not in time; if it continued, in contemplation of law, until the entry of judgment, the notice was premature, and the proceedings on the motion are void.
Moving for new trial does not of itself operate to extend the time for filing a statement on appeal from the judgment. And where judgment was rendered July 27th, 1859, and motion for new trial overruled Oct. 22d, 1859, a statement on appeal served Nov. 10th, 1859, was not in time.
At one time, seven shares of stock in a company are pledged by defendant to plaintiff as security for a note of defendant then executed. At another time, twenty more shares are pledged as security for another note of defendant then executed. In suit on the notes, and for sale of the stock, etc., the judgment was for the amount of the notes, and directed a sale of all the shares of stock, and an application of the proceeds to the payment of the judgment. Held, that the judgment was wrong so far as it ordered a sale of the stock in gross, and an application of the proceeds to the entire indebtedness.
Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.
There is nothing before the Court in this case but the judgment roll. The proceedings on the motion for a new trial were irregular and void. Notice of the motion was given one day before the judgment and six days after the filing of the report of the Referee. If the trial terminated with the filing of the report, the notice was not given in time; [315]if it continued, in contemplation of law, until the entry of the judgment, the notice was premature. In either case, it was ineffectual for any purpose. The statement on appeal was not served within the time required by the statute. The judgment was rendered on the twenty-seventh of July, 1859, and the statement was served on the tenth of November. It is true, the motion for a new trial was not overruled until the twenty-second of October; but even if that motion had been properly before the Court, it could not have operated to extend the time for the service of the statement.
The only error appearing upon the judgment roll, is in that portion of the judgment which directs a sale of certain shares of the capital stock of the Bear River and Auburn Water and Mining Company, and the application of the proceeds. These several shares were not pledged as security for the same debt, and it was error to order a sale in gross and direct the application of the proceeds to the payment of the entire indebtedness. To this extent the judgment must be reversed, but it is affirmed in other respects. Upon the return of the cause, the Court below will amend the judgment in conformity with this opinion.
Ordered accordingly.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)