Towdy v. Ellis
Before: Cope, Crocker
Synopsis
Appeal from the Fourth Judicial District.
The complaint is verified, and alleges that on the twelfth day of March, 1862, the plaintiff, J. C. Towdy, was the owner and entitled to the possession of certain personal property, the items of which are set forth, and that defendant, on the day mentioned, unlawfully took the goods from the possession of the plaintiff, and still wrongfully detains them; that the value of the goods is three hundred and two dollars and forty-two cents, and prays judgment for a return of the goods, or for then’ value, with damages in the sum of one hundred dollars and costs.
The answer, also verified, is as follows: “ John S. Ellis, the defendant in the above action, for answer to the complaint of the plaintiff therein says, that he denies, according to his information and belief, that the above plaintiff was, on the twelfth day of March, a.d. 1862, or at any other time, the owner of the goods and chattels mentioned in the complaint in said action, or that he was ever entitled to the possession of the same as alleged in said complaint, and he further denies that he became possessed of said property unlawfully and wrongfully detains the same from said plaintiff, or that he ever became possessed of said goods and chattels, or any part thereof, except the following, to wit: [here follows a list of a portion of the articles mentioned in the complaint], which said goods and chattels above mentioned this defendant now holds as Sheriff of said city and county, under and by virtue of a writ of attachment issued out of the District Court of the Twelfth Judicial District of said city and county, in a certain action brought therein by Louis Brunner, plaintiff, against Wm. A. Krohe, defendant, which said action was commenced and attachment issued on the first day of March, 1862, and pursuant to which said defendant herein took the above mentioned goods and chattels from the possession of said Krohe, and now holds them to satisfy any judgment that has been or may be obtained in favor of said Brunner against said Krohe in said action, and he denies that he has taken the said goods and chattels in any other manner. And the defendant further denies that he took said goods and chattels, or any part thereof, from the possession or custody of the plaintiff herein; and he further denies, according to his information and belief, that said plaintiff is entitled to the possession of the same, or any part thereof, or that the value of the same is of the sum of three hundred and two dollars and forty-two cents, as alleged in said complaint, or that said plaintiff has sustained any damage whatever; and the defendant further says, that, according to his information and belief, the said goods and chattels above mentioned were, at the time of said taking the property of said W. A. Krohe, in whose possession they were at the time of said taking, and that any claim of title to the same in favor of the plaintiff herein based upon any agreement or statement by said plaintiff and said Krohe, or either of them, is fraudulent and void. Earl Bartlett, Defendant’s Attorney.”
Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring. This is an action to recover the possession of personal property, and the defendant, who is the Sheriff of the County of San Francisco, claimed that it was the properly of one Krohe, and that he had levied upon it by virtue of an attachment against him. The defendant recovered judgment against the plaintiff for the possession of the property and for his costs, from which, and from an order overruling a motion for a new trial, the plaintiff appeals.
The new trial was denied on the twenty-first day of November, 1862, and the notice of appeal was filed February 10th, 1863, and the defendant accepted service of the notice February 20th. It is objected that the appeal from the order refusing a new trial was not taken within sixty days after the order was made, and therefore the appeal from that order must be dismissed. To this it is replied that the respondent has waived this objection by the terms of his acceptance of the service of the notice of appeal, which is in these words: “Due service of a copy of the within notice is hereby accepted to have been made this twentieth day of February, 1863,” and we are referred to the cases of Tatman v. Barnes (12 Wend. 227) and Struver v. Ocean Insurance Co. (9 Abbott, 23). In those cases it was held that an admission of “ due service of a [658]notice ” is a waiver of the objection that it was not served in time. In this case the acceptance only admits that the notice was duly served at a certain date, and cannot be considered as a waiver of the objection. The appeal from this order not having been taken in time, it will have to be dismissed, leaving the appeal from the judgment remaining.
The only statement in the record is the statement on the motion for a new trial, no statement on appeal having been filed. Sec. 195 of the Practice Act, as amended in 1861, provides that this statement, with the affidavits, depositions, etc., shall “ constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial.” The respondent insists that as the appeal from the order refusing the new trial must be dismissed, therefore the statement falls with it and cannot be used for any other purpose. That its use is confined to the determination of the questions involved in that motion.
Any statement agreed to by the parties, or duly settled and certified by the Court, becomes a part of the record, the same as a bill of exceptions, demurrer to evidence, or any other mode by which questions of law or matters of evidence were made .part of the record by the old system of practice. A statement is the substitute provided by the code for these former modes of proceeding, which were sometimes quite complicated in their nature, the “bill of exceptions ” under the old- system being still retained. Whenever, therefore, a matter of law or evidence is thus made a part of the record by a proper statement or bill of exceptions, whether such statement be filed on motion for new trial or on appeal, it is properly before this Court, the same as any other part of the record; and when before us it can be used to enable us to review the action of the Court below and determine' whether or not any error has been committed.' If the alleged error occurred prior to or in the rendition of the judgment, and affects its validity, or the validity of any action of the Court prior thereto, then such statement or bill of exceptions can properly be used on an appeal from the-judgment. If, however, the alleged error relates to the action of the Court subsequent to the rendition of the judgment, as an order made on a motion for a new trial, or any other order made after judgment,
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