Careaga v. Fernald

Ross, J. An action entitled Harris v. Careaga was referred by the Superior Court of Santa Barbara county to the defendant herein, “ to try all the issues of law and fact in said cause, and to report findings and a judgment thereon.” The case was [352]regularly tried before the referee, who subsequently, and on the 9th of January, 1882, reported to the court his findings of fact, conclusions of law, and a judgment; but by direction of the court, they were not filed until the 8th day of September, 1882. Meanwhile, however, that is to say, on the 13th of February, 1882, the defendant, against whom the decision of the referee was, gave notice of his intention to move for a new trial, and followed it with a statement which was settled, allowed, and certified by the referee, and filed in court on the 8th of September, 1882—the day the findings and judgment were filed. The proceedings thus taken by the defendant for the purpose of obtaining a new trial of the action, having been taken before the findings and judgment were filed, were ineffectual for any purpose, as was held on an appeal taken by the plaintiff in that action from an order made by the court based upon those proceedings granting a new trial. (Harris v. Careaga, 1 W. C. Rep. 467.) Being ineffectual for any purpose, they are to be laid out of consideration.

But it appears that subsequent to the filing of the findings and judgment, and within statutory time thereafter, the defendant duly served and filed a notice of intention to move for a new trial of the action, and within due time thereafter prepared and served upon the attorneys for the plaintiff in the action his proposed statement on the motion, who, reserving the right to object to the settlement thereof, proposed amendments thereto. Within proper time thereafter, the proposed statement and amendments were presented to the referee for settlement, which was continued from time to time until the 14th of May, 1883, at which time the respective parties, by their attorneys, appeared before the referee, when the attorney for the plaintiff objected to the settlement of the proposed statement, his objection being based on the fact of the former proceedings for a new trial. Subsequently, the respective parties were heard upon the objections, and on the 14th of June, 1883, the referee made and filed an order in writing, sustaining the plaintiff’s objections to the settlement of the statement, and refusing to settle the same. On the 9th of May, 1884, and after the decision of this court, holding the proceedings for new trial, first alluded to herein, ineffectual, the defendant applied to the court for a writ of