Hendrick v. Hitchcock

CURREY, C. J. In this case judgment was rendered for the plaintiff, whereupon the defendant gave due notice of motion for a new trial. The defendant then prepared and filed a statement to be used on such motion, which was settled by the judge of the court as correct. The motion being denied the defendant appealed from the, order and also from the judgment, and has brought up the same statement to be used on appeal in this court. The plaintiff takes the ground that the statement contains no specification of the particulars in which the evidence is insufficient to justify the decision and judgment; nor any specification of the particular errors upon which the defendant has relied for a reversal of the judgment and a new trial, and therefore insists that the statement must be disregarded by this court, as the statute declares it shall be in such cases: Prac. Act, sec. 195. We have in several cases declared the statutory consequence of such omission: Hutton v. Reed, 25 Cal. 482; Burnett v. Pacheco, 27 Cal. 410; Vilhac v. Biven, 28 Cal. 413. Yet all that has been said on the subject seems to have been disregarded on the part of the appellant in this instance, and as a consequence the statement must be disregarded.

No cause for a reversal of the judgment appears upon the judgment-roll, and therefore the judgment and order must be and is hereby affirmed.

We concur: Sanderson, J.; Rhodes, 'J.; Sawyer, J.; Shafter, J.