Doll v. McCumber , 1 Cal. Unrep. 135 ( 1864 )

RHODES, J.

The appeal is taken from the judgment, and not from the order overruling the motion for a new trial.

A statement was made by the plaintiff, on his motion for a new. trial, which was settled by the judge who heard the cause, and which it was agreed should constitute the statement on appeal. It does not contain the grounds upon which the plaintiff intends to rely on his appeal, and the parties have not stipulated that the grounds of the motion for a new trial appearing in the notice of the motion shall constitute a part of the statement on appeal. The grounds on which a party relies on appeal, so far as they relate to the matters appearing-in the statement, should in some manner appear therein. But as the respondent has made no objection to the statement on that point, the case will be considered as if the grounds in the notice were incorporated into the statement on appeal..

The first three grounds relate to the sufficiency of the evi-. dence to justify the findings of fact by the court. However much we might be inclined to reverse the action of the court on that ground, and particularly in respect to the effect of the license granted to the plaintiff, yet we are unable to do so, because an appeal has not been taken from the order overruling the motion for a new trial.

The questions as to the sufficiency of the evidence to warrant the verdict or the findings of fact can, under the Practice Act, be raised only on motion for a new trial, and the only manner that the action of the court upon those questions, can be reviewed is on appeal from the order granting or refusing the new trial.

The next two grounds are the refusal of the court to strike out a portion of the defendant’s amended answer, and to strike out the whole answer, upon the motion of the plaintiff. The reasons assigned in the motions were that the amendments were inconsistent with the original answer, and with each other. The amendments were evidently framed as an amended answer. The court gave the defendant leave to file an amendment to his answer, but, instead thereof, he filed an “amended and supplemental answer,” but an objection on that ground would scarcely be allowed, at least the opposite party must show that he was prejudiced thereby. Such being the case, it is immaterial that the amended answer was inconsistent with the original answer. We do not see any material inconsistency in the several allegations of the amended answer.

The remaining point is that the court erred in rendering judgment for the defendant. The facts found by the court clearly authorized and required the judgment to be entered as was done. The plaintiff insists that the license of the defendant,. to the plaintiff, to cut hay upon certain laud, was sufficient to give the plaintiff the title to the hay cut by him on such land. There is apparently some inconsistency in the findings upon this point, but, taking all the findings together, they amount to this: that the defendant did not object to the plaintiff’s cutting hay upon his (the plaintiff’s) own land, but did object to his cutting it on the defendant’s land.

Judgment affirmed.

We concur: Sanderson, C. J.; Currey, J.; Sawyer J.; Shatter, J.