Gunning v. Forbes

THOMPSON, J. Judgment was rendered against plaintiffs, quieting title in the defendants, Edwin F. and Hazel J. Forbes, to a placer mining claim in Yuba County. A motion for new trial was also denied. The only points urged by the appellants for a reversal of the judgment are: 1. The alleged abuse of discretion on the part of the trial court in refusing •to set aside the submission of the case to permit them to introduce further evidence of their title to the land, and, 2. The denial of a new trial on a motion based on alleged newly discovered evidence. No other errors in the trial of the cause are assigned or relied upon.

The complaint to quiet title alleges that the individual plaintiffs were duly appointed under section 403b of the Civil Code, and instituted this suit as trustees in behalf of the defunct mining corporation, Archimedes Gold Mining Company) as owners and entitled to the possession of a placer mining claim in Yuba County adjacent to the Yuba River. The answer and cross-complaint of Edwin F. and Hazel J. Forbes deny the material allegations of the complaint, with the exception of the allegation that the previously mentioned mining company is defunct, and affirmatively allege that they are the owners and entitled to the possession of said mining claim. They further allege the recovery of a final judgment in a former suit, May 15,1936, quieting title in Edwin F. and Hazel J. Forbes to the same property as res judicata of the issues in this case. At the trial of the case it appeared that, pursuant to a written agreement dated September 21, 1936, the Archimedes Gold Mining Company conveyed the mining claim in question by deed to Archimedes Gold Dredging Com[523]pany, from which dredging company said individual defendants derived their title. The judgment roll in that ease, the agreement and said deed were received in evidence. The individual defendants also proved that for twenty years preceding the commencement of this action they occupied and mined the property in question, openly and adversely, and that for the last five years they paid all taxes levied against the property.

The court adopted findings favorable to the defendants in every essential respect and rendered judgment quieting title to said mining claim in Edwin F. and Hazel J. Forbes, holding that plaintiffs have no right, title or interest in said claim or in any portion thereof.

The clerk’s transcript contains plaintiff’s notice of intention to move for a new trial on statutory grounds, including that of alleged newly discovered evidence. It also contains the order of the court denying the motion for new trial. Neither the clerk’s transcript nor the reporter’s transcript prepared at the request of appellants under section 953a of the Code of Civil Procedure' contains evidence that the motion for new trial was ever actually made, or that affidavits were filed or presented, or that other evidence was adduced on the motion for a new trial. The record on appeal is insufficient to show what evidence, if any, presented by affidavits or otherwise, was adduced or considered by the court on the motion for new trial.