Bornheimer v. Baldwin , 42 Cal. 27 ( 1871 )

By the Court, Wallace, J.:

A judgment for the plaintiff was rendered in the Court below on the 7th day of May, 1868; and on the 30th day of November, 1869, an order was entered denying the motion of the defendant for a new trial. On the 2d day of December, 1869, the defendant filed and served a notice of appeal from the judgment and order; and on the fourth day of the same month he filed an undertaking as upon appeal from the judgment only, but did not, within the prescribed time, file an undertaking upon appeal from the order. On the 20th day of December, 1869, the defendant filed and served another notice of appeal, in all respects, except its date, the same as the first one; and on the same day filed an undertaking upon appeal, in due form of law, from both judgment and order.

The respondent moves to dismiss the appeal from the judgment, because it was not taken within "one year after its rendition. It is insisted, for the appellant, that the motion must be denied, because of the appeal pending from the order. The cases of Hanscom, v. Tower, 17 Cal. 518, and Walden v. Murdock, 23 Cal. 540, are cited in support of this position. They have, however, no applicability to the question in hand. There was no motion made in either of them to dismiss an appeal from the final judgment; indeed, in Hanscom v. Tower no appeal from the judgment had been attempted. The point of practice decided in each of them was, that through the instrumentality of an appeal from the order denying a new trial, this Court would review the error appearing on the judgment roll.

The statute regulating appeals from final judgments as such, requires them to be brought, if at all, within one year. This limitation is peremptory, if either the pendency of an appeal from an order denying a new trial, nor any other circumstance, can operate to prolong it; and the motion of the respondent in that respect must, therefore, prevail.

The respondent also objects to the review by this Court of the order denying the new trial, because of the failure to perfect the first appeal taken from the order. There is nothing in this objection. The second appeal was taken and perfected within the time required by the statute, and it has not provided that a failure to perfect the first appeal should be held to defeat a second otherwise well brought. In this respect lies a distinction overlooked by counsel in argument, the distinction between a failure to perfect an appeal taken, as here, and a failure to file a statement or affidavits in support of a motion for a new trial after notice of intention given, as. in Leroy v. Rassette, 32 Cal. 171; for there the statute provides, in terms, that “ if no affidavit or statement be filed within five days after the notice * * * the right to move for a new trial shall be deemed waived.'”

The principal issue determined on the trial, which was had before a jury, arose upon an allegation of the plaintiff that he was a tenant in common with the defendant Baldwin of certain lands in the possession of the latter. This alleged tenancy in common was denied by the defendant. The general features of the case, as presented by the plaintiff, were that he and the defendant Baldwin made an agreement to enter upon and hold these lands as tenants in common, and for their equal benefit—each to contribute his share towards the expenses of the common occupation; that the agreement was carried into execution, and the premises taken into possession; that he contributed towards the expenses thereof—having advanced the defendant, at one time and another, several hundred dollars in all for that purpose— the general business, including the furnishing of the money, being mostly, if not altogether, transacted upon his part by his wife, who testified as witness on the trial to several interviews between herself and Baldwin—some before but most of them after occupation began—in all of which the latter, as she stated, admitted the tenancy in common, etc. It of course becomes of great importance, in view of the general circumstances of the case, to establish that these advances in money had in truth been made to the defendant Baldwin, by or on behalf of the plaintiff, in pursuance of the alleged agreement, and as his share of the expenses of holding the possession of the premises. In the course of her cross-examination, Mrs. Bornheimer had stated that a portion of the money she had so advanced to Baldwin she had borrowed from Sherman, a son-in-law of hers, in several sums, at different times, amounting to some one hundred and sixty-five dollars. Sherman, subsequently testifying for the plaintiff, was asked the following question by the Court: “ State whether or no, at any time while Mrs. Bornheimer was occupying block two hundred and ninety-nine, she borrowed any money from you, at the same time making a statement as to what use she intended it for?” To this question the defendants’ counsel made objection, as being incompetent, and because the evidence it sought to elicit would be hearsay.

The objection" was overruled, and the witness answered, in substance, that she had told him that she was borrowing money to pay Baldwin, when she applied to witness for it.

The question, the answer, and the ruling of the Court upon this point appear clearly enough in the record, and there can be little doubt that the Court erred in overruling the objection of the defendants. Sherman’s testimony as to what his mother-in law said to him is, in its nature, hearsay, and is, therefore, inadmissible, unless falling within some one of the exceptions to the general rule on that subject. That Mrs. Bornheimer lived at the time on block two hundred and ninety-nine, as assumed by the Court in the question put, is of no significance, for that block is no part of the property in controversy; hut if it had been in controversy, the question would have nevertheless been inadmissible. That the declaration made by her to him, and of which he was permitted to testify, was made in connection with the borrowing of money by her from him, is of no more significance upon the point. Her declarations so made were not part of the res gestae—they did not tend to elucidate or explain any fact or thing done, or assumed to have been done, in the case.

The res here—the thing done or claimed to have been done—was the furnishing of the money to Baldwin, and its receipt by him from Bornheimer; where Mrs. Bornheimer obtained it, or how, and consequently what she said when she got it, was, under the circumstances of the case, of no consequence whatever, and should have been excluded.

The offer by the defendants to prove what Mrs. Bornheimer testified to in the Police Court was properly excluded—at least, there is no such statement of. the facts desired to be proven as would enable this Court to see that they were, in themselves, admissible, or that the defendant was injured by the exclusion of the testimony offered.

H the case of the plaintiff be otherwise established, the defendant cannot defeat it by the application of the maxim, Ex dolo malo non oritur actio, nor set up in his defense that both he and the plaintiff entered upon the premises wrongfully in the first instance. Upon well-settled principles he cannot be permitted, if entering and remaining in possession as a tenant in common, to assail the common title or call its validity in question.

The appeal from the judgment is dismissed; the order denying a new trial is reversed and cause remanded.

Mr. Chief Justice Rhodes did not participate in the foregoing decision.