Spanagel v. Dellinger

Sprague, J., delivered the opinion of the Court: The appeal from the judgment in this case having heretofore been dismissed, we can now consider only the appeal from the order denying defendants’ (Reay and Ellis) motion for a new trial, and, in reviewing this order, we cannot review any finding of fact by the Court below, under the first general assignment of error, for the reason that appellants, in their statement of motion for new trial, have failed to specify the particulars in which the evidence is alleged to be insufficient to justify the findings. (Practice Act, Section 195; Hutton v. Reed, 25 Cal. 478; Carleton v. Townsend, 28 Id. 220; Vilhac v. Biven, 28 Id. 409.) The findings of the Court, therefore, upon the questions of fraud and conspiracy, as affecting the validity of the deed of Treadway to Dellinger, and upon the fact of redemption by Dellinger, as successor in interest of Treadway, of the three fifty-vara lots from the [281]sale under the Davis judgment, Avhich appellants have so vigorously assailed, cannot, for the reasons above stated, be reviewed or disturbed on this appeal.

We do not deem it necessary to express an opinion upon the point urged by appellant, that the allegations of the complaint are insufficient to constitute a cause of action as to three of the fifty-vara lots described therein, as Ave regard other points decisive of this appeal.

These points are : First—-That the Court erred in admitting, against the objections of defendants, evidence of the declarations and admissions of defendant, TreadAvay, made subsequent to his deed to Dellinger, and while he, Dellinger, was in possession under the deed of the 24th of October, 1861, to impeach the title transferred by such deed; and having so admitted and acted upon such evidence in making up its findings and decree based thereon, defendants, upon proper application therefor, were entitled to a new trial; and it was not competent for the Court, on the hearing of defendants’ motion for a new trial, and while its former findings were permitted to stand as the findings upon the whole evidence, to confess error in the admission of the objected evidence, and determine that defendants were not prejudiced thereby, and deny the motion on the ground that there remained sufficient legal evidence to sustain the findings and judgment. Second—-That the Court erred in permitting plaintiff to read in evidence, against objections of defendants, selected parts of a verified complaint of defendant, Dellinger, in a former suit by him against defendant, Beay, and selected portions of said Beay’s verified answer thereto, without reading the whole of such complaint and ansAver, as demanded by defendants; and in refusing to allow defendants to read in evidence such portions of said complaint and answer as plaintiffs had failed and refused to read.