Turner v. Reynolds

Belcher, C. C. This is an appeal by the defendant from a judgment in favor of the plaintiff, and from an order denying a new trial. The judgment was rendered on the fourteenth day of June, 1886; the order denying [215]a new trial was entered on the second day of December, 1886, and the notice of appeal was served and filed on the tenth day of February, 1887.

On an appeal from a final judgment an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed, unless the appeal is taken within sixty days after the rendition of the judgment. And an appeal from an order denying a new trial can only be taken within sixty days after the order is entered. (Code Civ. Proc., sec. 939.)

As the appeal in this case was taken more than sixty days after the rendition of the judgment, and after the order refusing a new trial was entered, the principal point urged by counsel for appellant, viz., that the findings of the court were not justified by the evidence, cannot be considered.

The other points, arising upon the judgment roll, are, that the court failed to find upon two material issues, and that it erred in allowing the plaintiff forty dollars damages.

The action was brought to recover the sum of three hundred dollars, paid by plaintiff to defendant as a deposit to bind the purchase of a lot of land in the city of San Francisco, and also the further sum of forty dollars, paid by plaintiff for an abstract and report on the title to the lot. The defendant gave plaintiff a written agreement for the sale of the lot, providing that twelve days should be allowed for an examination of the title, and that if the title should not prove to be valid, the deposit should be returned.

The complaint alleges that “defendant failed within said twelve days, and for a great many days thereafter, to make or pass a valid title to said land to this plaintiff, and has so failed up to this day, though the same has been by plaintiff often demanded; that defendant could not make or pass a valid title to said land, for the reason that the seller had not title to the westerly twenty feet [216]