Walden v. Murdock

Crocker, J. delivered the' opinion of the Court—Norton, J. concurring specially.

The plaintiff sues to recover damages for the seizure and conversion of one hundred and seventy-five head of cattle, claimed by him. The defendant justifies under a writ of attachment in his hands, as Sheriff, issued at the suit of one Wilson against one Wells, the plaintiff’s vendor. , The cattle in controversy were part of a large lot bought by the plaintiff of Wells on the twenty-eighth day nf November, 1860, in consideration of the plaintiff’s note for two thousand dollars and a debt of eight hundred and thirty-six dollars, besides interest due from Wells to the plaintiff; and also a debt of six hundred and fifty dollars due one Crow, on which the plaintiff was surety. A bill of sale of the property was executed to the plaintiff on the twenty-ninth of November. The attachment had been issued at the time of this sale, but it was not levied on the property until the thirtieth of November. On the part of [549]the defendant, it was contended, that there was no delivery or continued change of possession in the sale to the plaintiff, as required by Sec. 15 of the Statute of Frauds; that it was therefore fraudulent and void as against the defendant, who was a creditor of the vendor. The verdict and judgment in favor of the defendant was rendered June 14th, 1861, and an order overruling a motion for a new trial was made June 10th, 1862, and the notice of appeal from the judgment and order was filed August 4th, 1862—within sixty days from the date of the order overruling the motion for a new trial, but more than one year from the rendition of the judgment.

The respondent contends, that this Court has no jurisdiction of the appeal from the judgment, it not having been taken in time; and that this Court cannot take any action affecting the judgment, under the appeal from the order denying a new trial, for the same reason. In the case of Hanscom v. Tower (17 Cal. 518), there was no appeal from the judgment, but only from the order refusing a new trial; and the Court in that case say, in answer to the same objection: “ The appeal from the order refusing a new trial brings up the whole record; and there is nothing in the point that error cannot be assigned upon the judgment roll.” Under this appeal, this Court has a clear right, should it be satisfied that the Court erred in refusing a new trial, to reverse the order and grant a new trial, the effect of which is to vacate the judgment. This objection is therefore overruled.