Wells v. Kreyenhagen

Haynes, C. The defendants had judgment, and the plaintiff appeals therefrom and from an order denying his motion for a new trial.

Respondents object to the consideration of this appeal upon the ground that the record does not show that any of the papers appearing therein have ever been filed or used in the court below—except the notice of intention to move for a new trial and the notice of appeal—and that, as to the notice of intention to move for a new trial, it is not embodied in the statement on motion for a new trial. The record fails to show that either the complaint, answer, findings, or judgment were ever filed in the court below, nor is there any evidence in the record that the judgment was ever entered, nor is there any certificate to the papers which would constitute the judgment roll. The statement on motion for a new trial makes no allusion to any notice of intention to move for a new trial, nor is there any evidence that the statement was filed. The transcript purports to contain an order denying the motion for a new trial, but does not show that that order was ever entered, nor does the certificate of the clerk, added to the transcript, show that any of these papers were filed.

In Mills v. Dearborn, 82 Cal. 51, it was held that, “until, a settled statement on motion for new trial is filed, it is no part of the record, and cannot properly be considered by the court in ruling upon the motion, and the motion, if submitted without such filing, is properly denied, and that the fact that a statement was settled is shown by the judges’ certificate does not show that it was filed.”

[331]In Mix v. San Diego etc. R. R. Co., 86 Cal. 235, it was said: “A statement of the case is copied into the transcript, but it does not appear to have been filed in the court below after it was settled. This being so, it is no part of the record, and cannot be looked to in aid of this appeal.”

Section 659 of the Code of Civil Procedure explicitly requires the filing, not only of the notice of intention to move for a new trial, but of the bill of exceptions or statement, and there is no authority for the court to pass upon a motion for a new trial until the bill of exceptions or statement shall have been filed.

Mor is the appeal from the judgment in any better situation, since an appeal from a judgment will not lie until the judgment has been entered. (McLaughlin v. Doherty, 54 Cal. 519.)