Jue Fook Sam v. Lord

Paterson, J. Judgment was entered in the court below in favor of the plaintiff on February 20, 1889, for [160]the sum of $774.74 and costs, and the defendant appealed therefrom to this court on April 8, 1889.

The complaint states facts sufficient to constitute a cause of action, the verdict of the jury covers all the issues, and the judgment follows the verdict; there is, therefore, no merit in the appeal from the judgment.

The notice of intention to move for a new trial was not filed or served until March 9, 1889, more than ten days after entry of the verdict and judgment, and the proposed statement on motion for a new trial was not served on the attorney of defendant until April 25,1889. The judge of the court below declined to settle the statement, on the ground that neither the notice of intention nor proposed statement was served in time. Defendant thereupon appealed from the order refusing to settle the statement.

There is no doubt that the steps taken by defendant in his proceedings for a new trial were not within the time required by law, and that the statement, if settled, could not have been used in support of his motion. This his counsel concedes. It is claimed, however, that on his appeal from the judgment he -was entitled to a statement, and there being no time fixed by law within which such statement is to be served, and having the right under the statute to appeal from the judgment at any time within a year after its entry, his statement was prepared and served within a reasonable time, and should, therefore, have been settled by the judge as a statement on appeal.

The code provides that “any statement used on motion for a new trial, .... or any bill of exceptions settled as provided in sections 649 or 650, or used on motion for a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial.” (Code Civ. Proc., sec. 950.) Unless the statement was used on motion for a new trial, it cannot be used on appeal from the judgment. The letter [161]and spirit of the code provisions unite in showing that it was the aim of the legislature to require a party desiring to review a decision of the trial court on matters of fact, or its rulings at the trial, to take some steps to correct the error while the history of the trial is fresh in the memory of the judge and the parties. If the aggrieved party desires the court which tried the case to review its own decisions of law or of fact, and grant a new trial, lie “must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, .... file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds,” etc.; and thereafter he must prepare and serve his bill or statement within the time fixed. (Code Civ. Proc., sec. 659.) Any such bill or statement used on motion for a neiv trial may be used on appeal from a final judgment, although there has been no appeal from the order, if it appear from the certificate of the judge, or otherwise, that it was used on the hearing of the motion. If the proper steps have not been taken in time, and for that reason the judge has refused to settle the bill or statement, it is not one which has been used on motion for a new trial, and cannot, therefore, be used on appeal from the judgment.