Brady v. Feisil

Department No. 2, Thornton, P. J.: This case came before the Supreme Court ■ on appeal from the judgment, and was decided on the 6th day of November, 1877. (See report of it, in 53 Cal. at page 49.) The Court, on the appeal, reversed the judgment, and remanded the cause, with directions to enter judgment for the plaintiff on the findings. The remittitur was ordered to be issued forthwith. On the return of the remittitur to the Court below, and its filing therein, that Court entered a judgment as directed for the plaintiff. This was done on the 9th day of November, 1877. On the 19th day of the same month, the defendant filed and served notice of intention to move for a new trial, on grounds designated in the notice, and afterward prepared a statement on motion for a new trial, which appears to have been regularly settled by the Judge on the 28th day of March, 1878, the date of his certificate to its correctness. The motion for a new trial was denied on the 29th day of April, 1878: and on the 29th of May following, a notice of appeal from the judgment entered on the 9th day of November, 1877, and from the order above mentioned, denying the motion for a new trial, was given. The cause is now before this Court, on the appeal of the 29th of May, 1878.

There is no error in the record before us. The Court below entered judgment as directed by the Supreme Court, and nothing has since occurred of which complaint is made.

The defendant, in his motion for a new trial, endeavors to bring under examination matters that occurred on the trial, which resulted in a judgment in his favor on the 20th day oi [182]August, 1870, .and which judgment was reversed, with directions as above stated. The Court below rendered judgment for him on the findings. The Supreme Court reversed this judgment, and directed, on the same findings, a judgment for plaintiff.

It is contended, on behalf of defendant, that he is entitled to impeach the findings, as not sustained by the evidence on a motion for a new trial, and that he has been deprived of that right.

If he was not satisfied with the findings, he had the period prescribed by the Code of Civil Procedure, § 659, in which to give notice of his intention to move for a new trial. That period, in this case, was ten days after notice of the decision of the Court. It is evident that the time for such notice had passed long before the 19th of November, 1877, on which day the only notice of intention to move for such new trial was given. The defendant made his election to stand upon the findings, which did not sustain his judgment; and, having made such election, it cannot, in any sense, be said that he has been deprived of any right.