Arnold v. City of San Jose

Paterson, J. Plaintiff had judgment in the court below. Defendant served a notice of intention to move for a new trial, and in due time thereafter prepared and served a statement. Plaintiff served certain amendments which the defendant did not adopt. On November 10, 1886, the statement and proposed amendments were left with the clerk. Plaintiff, believing that the statement and amendments had not been presented within the time allowed by law, orders of the court, and stipulations of counsel, asked the court to disregard defendant’s statement and deny his motion for a new trial. The order appealed from reads as follows: “Motion of plaintiff to disregard defendant’s statement denied, and cause ordered on the law calendar for settlement of statement and amendments thereto.”

We are unable to see how the plaintiff could be prejudiced by this order. It determines nothing against him. The objections made by him can be preserved in the [622]statement before settlement, and the presumption is, that if they are well taken the court below will give him the benefit of them by denying the defendant’s motion for a new trial, without regard to or consideration of such motion on its merits.

No question is raised as to whether the order is an appealable one.

Order affirmed.

Fox, J., and Works, J., concurred.

Hearing in Bank denied.