Lewis v. Kelton , 58 Cal. 303 ( 1881 )

Ross, J.:

This cause was tried in the late Third District Court, County of Alameda, and resulted in a judgment for the plaintiffs. The defendants made a motion for a new trial, based on a statement of the case. The motion was heard before the Superior Court of that county, and resulted in the entry of an order granting a new trial, on the ground that the disputed premises constituted the homestead of the defendants, and that the statement did not show that the deed from them to S. S. Lewis (the plaintiffs’ predecessor) was ever acknowledged by the grantors as required by the statute. But the learned Judge who granted the motion overlooked the fact that the trial Court found that the deed to Lewis conveyed the premises, and that this finding was not attacked by the moving parties in their specifications of error, even as permitted to be amended.

The finding that the deed conveyed the premises necessarily included a finding of every fact essential to such conveyance. As this finding of the Court was not assailed, it was not necessary for the statement to contain the evidence in support of it.

Order granting a new trial reversed.

McKinstry, J., and McKee, J., concurred.