Wetherbee v. Dunn

By the Court, Sanderson, J. : This action purports to be what would have been, prior to the adoption of our code of procedure in civil cases, a bill in equity to ascertain and settle disputed boundaries between adjoining land owners. It was brought against two classes of defendants—first, the widow and minor heirs of George Dunn, deceased; and second, the widow, heirs, and executors of Frederick P. Tracy, deceased. Each class of defendants was represented by different counsel. There seems to have been no dispute between the plaintiff and the Tracy heirs; for the description of the land claimed by the latter, as given in their answer, is the same as that contained in the complaint, and the contest at the trial was between the plaintiff and the Tracy heirs on one side, and the heirs of Dunn on the other.

The transcript shows that the case first came on for trial, without'a jury, on the 24th of January, 1865, John Reynolds appearing as attorney for the plaintiff, and James Pratt for the Tracy heirs, but no one appearing for the heirs of Dunn. A trial was then had without the presence of the only parties to the action who had any interest in defeating it, and a judgment was obtained in all respects satisfactory to the [252]plaintiff and the Tracy heirs. This judgment, however, on the 30th of the same month, was vacated upon the motion of Gregory Yale,'attorney for the heirs of Dunn, on notice to the plaintiff, but without notice to the Tracy heirs, and in the absence of their counsel; and an order made allowing the Dunn heirs to introduce their evidence, leaving the evidence which had been already taken to stand. The trial was again proceeded with on the 6th of February, 1865, at which time James Pratt, attorney for the Tracy heirs, appeared without any objection to the order opening the case, and participated on their behalf in the further trial of the case, which resulted in a judgment dismissing the action at the cost of the plaintiff—which judgment was rendered on the 1st of May, 1865, but was not entered of record in the Judgment Book until the 12th of May, 1866, more than a year after it was rendered. The plaintiff moved for a new trial, which was denied on the 2d of April, 1866, and appealed from the judgment and the order denying a new trial on the 30th of May following. On the day last named the Tracy heirs also appealed from the judgment. The two appeals have come up in the same transcript, which contains the statement on the plaintiff’s motion for a new trial, and the statement on the appeal of the Tracy heirs from the judgment.

The appeals from the judgment were both taken more than a year after its rendition, and cannot, therefore, be entertained under the rule announced by us in Gray v. Palmer, 28 Cal. 416; Peck v. Curtis, 31 Cal. 207, and Genella v. Relyea, 32 Cal. 159. In all of those cases we held that the time within which an appeal from a judgment may be taken must be computed from the time the judgment is announced by the Court and entered in its minutes, and not from the date of its entry in the Judgment Book by the Clerk.