Neely v. Naglee

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This was an action upon an account for work and labor performed by the plaintiff and his wife, for goods sold, money paid, etc. The case was, by stipulation of the parties and order of the Court, referred to a referee to take the testimony and report the same to the Court. The referee took the testimony, duly reported the same, the Court filed its findings therein in favor of the plaintiff, and judgment was rendered accordingly, from which the defendant appeals.

The stipulation of the parties provides that five days’ notice of the time and place of taking the testimony by the referee should be given to the parties. The referee resided at San José, and the testimony was taken there, while the defendant’s attorney resided at San Francisco. A proper notice, specifying the time and place [154]of taking the testimony, was duly deposited in the post-office at San José, postage paid, directed to the defendant’s attorney at San Francisco, seven days before the time fixed. The defendant did not appear at the taking of the testimony; and when the case came before the Court, upon the testimony as reported by the referee, the plaintiff moved for judgment upon the pleadings and testimony, which was opposed by the defendant, who objected to the Court’s considering any part of the testimony, on the ground that he was not present when it was taken, and proper notice had not been given. On the hearing of this motion, the plaintiff introduced a witness who testified that he knew the distance between San José and San Francisco, and that the distance by the United States mail-route is about forty-eight or fifty miles. The defendant, however, contended that the distance was to be ascertained by the Statute of 1858, defining the legal distances from each county seat to the Capital, Eunatic Asylum, and State Prison; that by that act the legal distance from San José to San Quentin was fixed at eighty miles, and the distance from San Francisco to the latter place was fixed at twelve miles, leaving the legal distance from San José to San Francisco at sixty-eight 'miles, which, at twenty-five miles per day, would require three instead of two days for the traveling time of the notice. The Court overruled the defendant’s objection, and he now assigns this action of the Court as error.

The act referred to by the defendant declares that the distances established by it, are the legal distances for which mileage shall be allowed for County Treasurers settling their accounts, for conveying the insane to the State Asylum, and to Sheriffs for transporting prisoners to the State Prison, and it therefore has no appplication to the question before the Court. The distance between San José and San Francisco was a fact to be determined by proper evidence; and such evidence was introduced by the plaintiff, establishing it at forty-eight to fifty miles. This evidence shows that the notice was served in due time, and the Court therefore properly overruled the defendant’s objection.