Bank of Healdsburg v. Hitchcock

Thornton, J. We think that the record here shows that the notice of intention to move for a new trial was properly and duly given. We find in the order denying the motion that the court below denies it on the ground that “a motion for a new trial is not the proper remedy.” If the notice of intention to move was not given at all, or was not given in time, the court might and would have denied the motion for a new trial on one or the other of such grounds.

The ground on which the court rested its denial of the motion satisfies us that the notice for a new trial was in all respects regular, and that there is no ground to indulge the presumption that the notice of intention was not given at all, or not given in time, and on one or the other of such grounds, that the motion was denied.

The court decided the cause on a stipulation or contract made between the parties to the action in regard to the partition of the lands involved in this case, and other lands not involved herein. The contract was entire, its terms being dependent, and in our judgment the court erred in selecting a portion of the contract and ruling on it, and disregarding other portions of it. No one can say on reading the contract (which seems to have been filed as a stipulation in the cause) that the defendant consented or would have consented to the partition of the land involved in this action, unless the provisions of the contract in regard to the other lands were also carried out.

We are of opinion, therefore, that there was no evidence to justify the decision of the court.

[494]If the defendant refused to carry out his contract with the plaintiff, the plaintiff has its remedy by an action for specific performance.

The judgment and order must be reversed and the cause remanded. So ordered.

McFarland, J., and Sblarpstein, J., concurred.