Bornheimer v. Baldwin

California Supreme Court Oct 15, 1871 No. No. 2,317Published

Before: Wallace

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Holding. The court dismissed the appeal from the judgment as untimely and reversed the order denying a new trial due to the erroneous admission of hearsay testimony regarding the plaintiff's source of funds.

Issues

Whether an appeal from a final judgment filed more than one year after its rendition is barred by statute.
Whether a second notice of appeal and undertaking can be valid if the first was not properly perfected.
Whether testimony regarding a party's out-of-court statements about the intended use of borrowed money constitutes inadmissible hearsay.

Disposition. Appeal from judgment dismissed; order denying new trial reversed and remanded.

Quotations verified verbatim against the opinion

“The statute regulating appeals from final judgments as such, requires them to be brought, if at all, within one year.”

“Sherman’s testimony as to what his mother-in law said to him is, in its nature, hearsay, and is, therefore, inadmissible”

“Her declarations so made were not part of the res gestae—they did not tend to elucidate or explain any fact or thing done, or assumed to have been done, in the case.”

Synopsis

Appeal prom Judgment, ip Too Late, Not Saved by Appeal prom New Trial Order.—An appeal from a final judgment must Be taken within one year from its rendition. The pendency of an appeal from an order denying a new trial in the same case will not operate to prolong the time for an appeal from the judgment.

Failure to Perpect an Appeal Will Not Depeat a Second Appeal otherwise Well Brought.—Where an appeal from an order denying a new trial was not perfected, and afterwards, hut within sixty days from the order, a second appeal was taken and perfected: held, that the failure to perfect the first did not defeat the second appeal.

Declarations op Wipe, acting as Agent, when not Part op Res G-ests, Hearsay Evidence.—In an action hy Bornheimer against Baldwin, for an undivided interest in land, alleged to have been purchased on joint account and partly with money borrowed by Mrs. Bornheimer and handed to her by Baldwin: held, that the statements of Mrs. Bornheimer to a third person, to the effect that she was borrowing money to pay Baldwin, were hearsay, and their admission against defendants’ objections (though called out by questions of the Court) was error.

On Appeal por Exclusion op Testimony the Record Should Show What the Testimony Was.—The exclusion of testimony in the Court below cannot be held error on an appeal, when the record fails to give such a statement of the excluded testimony as will enable the appellate Court to see whether it was admissible, or that appellant was injured by its exclusion.

Bad Eaith in Entry Cannot be Set TJp by One Tenant in Common against Another.—In an action of ejectment by one tenant in common against another, the latter cannot invoke the maxim, Me dolo malo non oritur actio, nor defend upon the ground that he and plaintiff entered upon the premises wrongfully in the first instance.

Tenant in Common Cannot Assail the Common Title.—A tenant in common, entering and remaining in possession as such, cannot, as against his cotenant, assail the common title, or call its validity in question.

By the Court, Wallace, J.: A judgment for the plaintiff was rendered in the Court below on the 7th day of May, 1868; and on the 30th day of November, 1869, an order was entered denying the motion of the defendant for a new trial. On the 2d day of December, 1869, the defendant filed and served a notice of appeal from the judgment and order; and on the fourth day of the same month he filed an undertaking as upon appeal from the judgment only, but did not, within the prescribed time, file an undertaking upon appeal from the order. On the 20th day of December, 1869, the defendant filed and served another notice of appeal, in all respects, except its date, the same as the first one; and on the same day filed an undertaking upon appeal, in due form of law, from both judgment and order.

The respondent moves to dismiss the appeal from the judgment, because it was not taken within "one year after its rendition. It is insisted, for the appellant, that the motion must be denied, because of the appeal pending from the order. The cases of Hanscom, v. Tower, 17 Cal. 518, and Walden v. Murdock, 23 Cal. 540, are cited in support of this position. They have, however, no applicability to the question in hand. There was no motion made in either of them to dismiss an appeal from the final judgment; indeed, in Hanscom v. Tower no appeal from the judgment had been attempted. The point of practice decided in each of them was, that through the instrumentality of an appeal from the order denying a new trial, this Court would review the error appearing on the judgment roll.

The statute regulating appeals from final judgments as such, requires them to be brought, if at all, within one year. This limitation is peremptory, if either the pendency of an appeal from an order denying a new trial, nor any other cir[32]cumstance, can operate to prolong it; and the motion of the respondent in that respect must, therefore, prevail.

The respondent also objects to the review by this Court of the order denying the new trial, because of the failure to perfect the first appeal taken from the order. There is nothing in this objection. The second appeal was taken and perfected within the time required by the statute, and it has not provided that a failure to perfect the first appeal should be held to defeat a second otherwise well brought. In this respect lies a distinction overlooked by counsel in argument, the distinction between a failure to perfect an appeal taken, as here, and a failure to file a statement or affidavits in support of a motion for a new trial after notice of intention given, as. in Leroy v. Rassette, 32 Cal. 171; for there the statute provides, in terms, that “ if no affidavit or statement be filed within five days after the notice * * * the right to move for a new trial shall be deemed waived.'”

Bornheimer v. Baldwin

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