Weyl v. Sonoma Valley R.R.
Before: Foote
Synopsis
Appeal — Notice—Designation of Judgment or Order Appealed from, — A notice of appeal, sufficient in other respects, will not be held insufficient merely because it incorrectly states the date on which the judgment and order appealed from were entered, if the record on appeal shows that there has been but one judgment or order of the kind appealed from entered in the cause.
Id. — Exception to Decision—Insufficiency of Evidence—Time of Appeal — Judgment.— An exception to the decision on the ground of the insufficiency of the evidence will not be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment.
New Trial—Notice—Minutes oe Court — Evidence —■ Specification of Particulars. —A notice of motion for a new trial, to be made upon the minutes of the court, on the ground that the findings and decision are not justified by the evidence, must specify the particulars wherein the evidence is claimed to be insufficient.
Street—Deed Bounded by—Owner Presumed to Hold to Center— Sonoma Pueblo Lands — Sales of.—Under section 831 of the Civil Code, the owner of land bounded by a road or street is presumed to own to the center of the way, unless the contrary be shown; and if the land be described in a deed as so bounded, it is presumed to extend to the center of the street or road, unless a contrary intention appear. This rule obtains as to sales of Sonoma pueblo lands made by the pueblo commissioners under the act of March 30, 1868.
Id. —Owner may Maintain Ejectment for Street. —The owner in fee of land, subject to an easement over it for a public highway, may maintain ejectment against an intruder.
Id.—Use of Street by Steam Railroad—Compensation to Abutting Proprietor. — A steam railroad corporation cannot acquire a right of way for its road over a street in a municipality, the fee in which is owned by an abutting proprietor, except upon compensation first made to him.
Foote, C. The transcript in this cause being very defective was made intelligible by stipulation between counsel on both sides, and by a certificate of "the. clerk of the court below filed in this court under rule 12.
The respondent makes the point that the appeal is not well taken, and should not be considered, for the reason that the notice of appeal does not give the correct date of the entry of the judgment and order denying a new trial, from which the appeal is sought to be prosecuted.
The object of such a notice is to impart the requisite information to the opposite party of his opponent’s in[204]tention to appeal, and what specific judgment or order is appealed from, and if the notice is sufficiently explicit in these particulars it should be declared sufficient.
The notice of appeal under consideration correctly states the title of the cause, and only fails of being sufficient in all other respects, as is admitted by the respondent, because it incorrectly gives the date at which the judgment and order appealed from were entered; it also appears by the record that there has been but one judgment or order of the kind appealed from entered in the cause.
From this it would appear that the said notice ought not to be declared void, but the mistake of dates merely should be regarded in this case as a clerical misprision.
The exception that the decision in this case is not supported by the evidence, we cannot review on the appeal from the final judgment, because the former was not taken within sixty days from the rendition of the latter. (Code Civ. Proc., sec. 939.)
The motion for a new trial was made upon the minutes of the court, and the ground taken therein, that the findings and decision in the cause were not justified by the evidence, is not tenable, and the motion was properly denied, as the notice of motion did not contain any specifications of particulars wherein the evidence was alleged not to sustain said findings and decision. (Code Civ. Proc., sec. 659, subd. 4; Eddelbuttel v. Durrell, 55 Cal. 277.)
Appellants claim further, that the court should have dismissed the action as to Mr. Donahue, that a demurrer filed to the complaint should have been sustained, and that the findings do not support the judgment.
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