Millan v. Hood

VANCLIEF, C. Action to enforce an alleged trust in land. Judgment for defendant, from which and from an order denying his motion for a new trial the plaintiff appeals.

1. The notice of intention to move for a new trial stated, as the grounds upon which the motion would be made, only insufficiency of the evidence to justify the findings and errors in law committed at the trial. It further stated that the motion would be made “upon a statement of the case.” But the statement of the case, which was thereafter made and allowed by the court, contains no specifications of any particular in which the evidence is insufficient to justify the findings nor of any error in law committed by the court. Therefore, in obedience to section 659 of the Code of Civil Procedure, the trial court must have disregarded the statement, and consequently did not err in denying the motion for a new trial.

2. The plaintiff demurred to the following addition to the answer of defendant, on the ground that the same does not' state facts sufficient to constitute a cause of action against the plaintiff: “And further answering, and for a cross-complaint, the defendant avers: (1) That he now is, and for a long time prior to the commencement of this action he was, the owner, in the possession and entitled to the possession of all that certain real estate described in the complaint, and particularly described as follows, to wit: The east half of the southwest quarter, and the southeast quarter of the northwest quarter, of section 13, in township 14 north, range 9 east, Mount Diablo base and meridian; (2) that the plaintiff herein claims some interest in said property adverse to the said defendant, but that said claim of plaintiff is without any right whatever, and that the said plaintiff has not any estate, right, title or interest whatever in said land or premises, or any part thereof.” The court overruled the demurrer, and thereupon plaintiff’s counsel, who was present in court at the [550]time, asked the court to allow him twenty days ’ time in which to answer the so-called cross-complaint, and the court granted his request, but, plaintiff having failed to answer within twenty days, the clerk entered his default. Thereupon the plaintiff moved the court to open the default, and for leave to answer the alleged cross-complaint, on the grounds that the default “was improperly entered, and, if properly entered, was the result of mistake, inadvertence, and excusable neglect.” The motion was presented and heard on affidavits, and the proffered answer to the cross-complaint. The court denied the motion and plaintiff excepted. This motion, with the affidavits, proposed answer, minutes of the court, and other facts upon which it was heard, are made to appear by a "bill of exceptions, settled and allowed before the trial, which may be considered on the appeal from the judgment. It is contended by counsel for appellant that the court erred in overruling the plaintiff’s demurrer to the so-called cross-complaint, and also in denying plaintiff’s motion to open the default and to allow the plaintiff to file his proposed answer.