Moore v. Long Beach Development Co.

Foote, C. The respondent contends that the statement upon motion for a new trial which appears in the transcript cannot be looked into, for the reason that it is not identified, as having been used upon the hearing of the motion.

There is but one notice of appeal, and that is, both as to the judgment, and the order denying a new trial. The stipulation at the end of the transcript is to this effect: “ It is hereby agreed that the foregoing transcript contains a full, true, and correct copy of all papers necessary and proper to be used on this appeal; that the appeal herein was duly perfected, and the requisite deposit in lieu of an undertaking was given within the time prescribed by law; that the foregoing is a full, true, and correct transcript of the record on appeal, and that the appeal herein may be heard thereon.”

If the word “appeal,” as used in the stipulation, was intended to apply to both the order denying a new trial, and the judgment, then it covers the statement of the case which aptpears in the transcript, which is in due form, [486]and appears to have been settled by the judge, and filed on February 3, 1890. The order denying a new trial was made on the 17th of February, 1890.

It is plain that"the appeal was taken from both order and judgment, and the stipulation evidently refers to them both, where the word “ appeal” is used. Since the stipulation states that the "appeal herein may be heard” upon the record on appeal in the transcript, it is proper that the statement here, under all the facts appearing in the record, should be held as being one that can he looked into on the appeal from the order denying a new trial.

The main argument for the reversal of the judgment and order by the appellant seems to be that the evidence is insufficient to show that the plaintiff was a boarder, and not a guest, of the innkeeper who was sued, and the former contends that if a guest he is entitled to recover, but not as a boarder.

The case, as stated in the complaint, is that of an individual who goes to an inn as a guest or transient traveler, and while he is there the inn burns down, and he loses his baggage, containing wearing apparel, jewels, and other personal valuables, occasioned by the negligence of the defendant and his servants, and seeks to make the innkeeper responsible for the loss. The fire appears to have been purely accidental, and there is nothing to show that the goods lost were not under the control of the owner, kept in his rooms, or that they were ever in the manual possession of the innkeeper.