Waddingham v. Tubbs

Vanclief, C. This is an action to quiet the alleged title of plaintiff to lots numbered 7, 8, and 9, in block 42, of the town of Ontario, in the county of San Bernardino. The cause was tried by the court, and the judgment was in favor of plaintiff for lots 8 and 9, and in favor of defendant for lot numbered 7.

Each party moved for a new trial upon a distinct bill of exceptions. Both motions were denied, and each party has appealed, — the defendant from the judgment against him as to lots 8 and 9, and from the order denying his motion for a new trial; and the plaintiff from the judgment against her as to lot 7, and from the order denying her motion for a new trial. Both appeals are brought upon the same transcript.

1. Upon the appeal of defendant it will be necessary to consider only one question, viz.: Did the defendant serve his notice of intention to move for a new trial within the time prescribed by section 659 of the Code of Civil Procedure?

[250]The decision of the court was rendered on December 27, 1890. Written notice of defendant’s intention to move for a new trial was not served until January 24, 1891, when defendant’s attorneys admitted the service, but expressly reserved and saved their right to object to the notice on the ground that it was too late.

Section 659 of the Code of Civil Procedure requires the notice of intention to move for a new trial to be served upon the adverse party “ within ten days .... after notice of the decision of the court”; and respondent (on this appeal) contends, —1. That appellant had actual notice of the decision of the court on December 29,1890, ■ and then so acted upon such actual notice as to waive formal written notice; and 2. That respondent served written notice of the decision upon appellant’s attorneys on January 6, 1891. The first of these contentions is grounded upon the following facts of record: “On the twenty-ninth day of December, 1890 (two days after the decision), counsel for defendant and counsel for plaintiff, upon notification by counsel for defendant, and defendant in person, made argument in open court before said judge, upon the apportionment of the costs of said trial under the decision of the court; and said judge announcing thereafter that each party should pay its own costs of trial, it was then suggested and consented by the respective parties that the said judge might insert in the conclusions of law in said case that each party should pay his own costs.”