Preston v. Hearst

Department No. 2, Morrison, C. J.: This is an appeal from what is called a judgment,vs the above case, as well as from an order of the Court below denying plaintiff’s motion for a new trial.

The decision of the Court, upon the motion for a new trial, cannot be considered on this appeal, for the reason that the ¡.statement is insufficient for that purpose. Subdivision 3 of § 659 of the Code of Civil Procedure provides that “ when the notice of the motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient.” The statement in this case fails to specify such particulars, and does not comply with the foregoing provision of the Code. It is, therefore, insufficient. (Phillips v. Lowery et al. 54 Cal. 584.)

There is also an appeal from what was called, upon the argument, the judgment in the case. It is in these words :

[597]“ Tliis cause having been heretofore submitted to the Court for decision, and the Court being advised, now orders that the plaintiffs take nothing by their action, and that the defendants have judgment for their costs herein. Entered October 29th, 1877, Minute Book K, p. 197.” The notice of appeal was filed November 22nd, 1878.

It is unnecessary for the Court to determine at this time whether the above entry is a judgment or not. If it is a judgment, the appeal was not taken in time, and should therefore be dismissed. If it- is simply an order for a judgment, the appeal has been prematurely taken and cannot be entertained..

Order denying motion for a new trial affirmed, and the other appeal dismissed.

Thornton, J., and Myrick, J., concurred.