Flateau v. Lubeck

By the Court, Currey, J. The respondent M this case makes certain preliminary objections to the transcript on appeal, on the grounds :

1st. That no notice appears to have been given by the plaintiff to the defendant of Ms intention - to move for a new trial, and that, therefore, the statement purporting to be a statement on motion for a new trial cannot be considered on appeal.

[3652]d. That the notice of appeal is radically defective, and insufficient for the purpose intended by the appellant.

From the transcript in the case it appears that the verdict was rendered on the tenth day of November, 1863, in favor of the defendant, against the plaintiff, and that on the day following, on motion of plaintiff’s counsel, the Court, by order, granted to the plaintiff ten days from that time in which to prepare and file a statement to be used on motion for a new trial | that on the 17th day of the same month, a statement, which the parties agreed to as correct, was filed; and that between the time the order was made and the day when the statement was filed, namely, on the 13th day of said month, the counsel for plaintiff moved for a new trial, which was then denied by the Court. There is nothing in the transcript from which it can be inferred that the defendant or his counsel had any notice of the motion for a new trial, or that he or they appeared or participated in the argument of the motion.

As to the first objection, the statute provides that the party intending to move for a new trial shall give notice of the same, when the action has been tried by a jury, within five days after the rendition of the verdict, and that the notice shall designate, generally, the grounds upon which the motion will be made. (Laws of 1863, p. 643.) In Borland v. Thornton, 12 Cal. 448, the Court say: “ When the statute speaks of notice, it means written notice, or notice in open Court, of which a minute is made by the Clerk.” That a notice in legal proceedings should be in writing, we deem essential to the protection of the rights of the party to be affected by it. Any other practice would, in many instances, be attended with mischievous results, and hence should be discountenanced, (Gilbert v. Columbia Turnpike Company, 3 Johns. Cas. 107.) The statute does not provide for any other than a written notice, and we are not satisfied that a notice in open Court, entered in the minutes of the Clerk, hi such cases, can properly serve as a substitute for the notice contemplated by the statute. If it can, then it should contain all the substantive elements of the statutory notice, and should be brought to the