Pico v. Cohn

Works, J. — This is an action by the plaintiff and appellant to compel the reconveyance of certain real property conveyed by.him to the defendant, on the grounds: 1. That the same was conveyed as security for money borrowed; and 2. That the conveyance was procured by fraud.

Preliminary to a discussion of the merits of the case, we are called upon to determine whether the matters presented by the statement on motion for a new trial can be considered. The respondent contends that the statement must be disregarded for the reason that no [385]notice of intention to move for a new trial is set out therein or in any way shown to have been given. The point made is that, as the notice of intention to move for a new trial is not before us, we cannot know upon what grounds the motion was made, and therefore no error appears in the record.

The question is not a new one, but the decisions of this court have not distinctly and clearly settled the practice in this respect.

Formerly the notice was made a part of the record on appeal by express statutory provision. But it is not so under the present code. (Code Civ. Proc., 670; Girdner v. Beswick, 69 Cal. 112; Dominguez v. Mascotti, 74 Cal. 269.)

Nor is there any provision of the code requiring that such notice shall be brought to this court by including it in the statement, or in any other manner. The papers necessary to be brought up are set out in sections 661 and 952 of the Code of Civil Procedure, and the notice of intention is not one of them.

The former statute having made the notice of intention a part of the record, we must assume that it was omitted from the present code with a purpose. Being omitted from the section providing what papers shall constitute the record on appeal, and no provision being made for bringing it up in any other way, it is fair to presume that it was not intended to require it to be brought to this court at all. This leads us to the conclusion that it was the legislative intention that the notice should be the basis of the motion to be made in the court below, and that, upon the proper statement being filéd, and the necessary motion made and passed upon by the court below, the notice has performed its functions, and is not a necessary part of the record on appeal, or to be presented here in any form. When the case comes to us we must look to the statement or bill of [386]