Warden v. Mendocino County

By the Court, Currey, C. J.: The plaintiff, the Sheriff of Mendocino County, brought this action for fees alleged to be due him for services rendered in criminal cases in behalf of the county, extending over a period commencing in June, 1865, and ending in February, 1866'. The defendant demurred to the complaint. The demurrer being overruled, an answer was filed meeting the allegations of the complaint either by direct denial or by matters in avoidance. The cause was tried on the 24th of July, 1866, before the Judge, without a jury, which resulted in a judgment for the plaintiff. The transcript of the record shows that, on the 16th of October, 1866, the Judge at Chambers in [656]Santa Rosa, Sonoma County, made an order “ dismissing the defendant’s motion for a new trial,” on the ground of delay in bringing said motion to a hearing. Whereupon the defendant’s attorney prepared, and procured to be settled and signed by the Judge, a bill of exceptions to the ruling and order dismissing the motion for a new trial, from which it appears that the cause was tried and judgment rendered against the defendant on the 24th of July, 1866 ; that written findings of the Court were filed and a notice thereof served on the defendant on the 23d of August, and that a notice of motion for a new trial in due form was made on the 1st of September. That the Court made an order granting to the defendant twenty days after service of notice of the findings, in which to file statement on motion for a new trial, which statement was filed on the 12th of September. That on the 13th of October the defendant .gave notice to the plaintiff that he would apply to the Judge to settle the statement and thereupon move for a new trial. That no amendments to the statement were proposed, but instead the plaintiff moved to dismiss the motion, which as we have seen was granted, to which ruling the defendant excepted.

The defendant appealed from the judgment, and, as the notice expresses it, “ from the order of the District Judge overruling defendant’s motion for a new trialwhich, in fact, was a result accomplished by the order made.

The plaintiff has interposed an objection to this Court entertaining jurisdiction of the case, because no undertaking on appeal appears to have been executed. It is only necessary to say in respect to this objection, that the Act entitled “An Act concerning appeals in certain cases ” is a complete answer to it. (Laws 1856, p. 26; People v. Supervisors of Marin County, 10 Cal. 346.)

It appears from the bill of exceptions, the object of which was to preserve an exception to the ruling of the Judge dismissing the motion for a new trial, that notice of the findings of the Court was served on the defendant on the 23d of August, and that within ten days thereafter a notice of motion