Maguire v. De Fremery

Sharpstein, J. Appeal from an order granting a new trial.

[402]Action by surviving husband of defendant’s testatrix against him and her sole surviving child to quiet the alleged title of plaintiff to a certain lot of land in the city of Oakland. Judgment and decree in favor of defendants. The plaintiffs moved for a new trial, on the grounds: 1. Insufficiency of the evidence to justify the judgment, decree, and findings, and that it is against law; 2. Errors in law occurring at the trial, and excepted to by plaintiff.

The motion was made upon a statement of the case, a bill of exceptions, and the minutes of the court.

The record before us contains a statement on motion for new trial. There is no copy of a bill of exceptions or of the minutes of the court.

The particulars in which the evidence was insufficient to justify the judgment and findings are specified as follows:—

“1. The evidence shows that the property was conveyed to Mrs. Maguire during coverture, for money consideration, which raised the presumption that it was common property, and no evidence whatsoever was introduced to show that any of the moneys paid for said property was not the common property of the parties to the marriage.

“ 2. No evidence was offered to show that the property was acquired by said Rose Barker as her separate property, or that it was acquired by any money other than common money.

“ 3. The evidence shows that the estate was common property.

“Errors in law occurring at the trial, excepted to by the plaintiff.

“The court erred in holding that the property was not the common property of Maguire and wife.”

The error of law specified is, that “the court erred in-holding that the property was not the common -property of Maguire and wife.”

[403]The evidence contained in the statement is as follows:—