Carrillo v. Smith 37 Cal. 337

JOAQUIN CARRILLO, MARTA CARRILLO, and JOHN A. BARRY v. C. D. SMITH.

Piling Statement on Motion eor New Trial.—Under section one hundred and ninety-five of the Practice Act, either the Court or a Court Commissioner may extend the time for filing a statement on motion for a new trial twenty days beyond the five or ten days given by statute.

Appeal from the District Court, Seventh Judicial District, Sonoma County.

This was an action of ejectment to recover a tract of land in the City of Sonoma, commenced April 2d, 1868. Trial *338by the Court, June 23d, 1868, and findings of fact filed the same day, and judgment for plaintiff. On the same day written notice of the filing of the findings served on the plaintiffs’ attorneys. July 1st, 1868, defendant served and filed notice of intention to move for a new trial, and on the same day A. W. Thompson, the Court Commissioner, made an order extending the time to make and file statement on motion for a new trial to twenty days from and after July 6th, 1868. On the 25th of July, 1868, the defendant filed and served on plaintiffs’ attorney a statement on motion for a new trial. On the 23d of December, 1868, the plaintiffs’ attorney served upon the defendant’s attorney a notice of motion to disrñiss the defendant’s proceedings and motion for a new trial, because the defendant’s statement was not filed within the time prescribed by law. On the 29th of December, 1869, the Court made an order denying the defendant’s motion for a new trial, because the statement was not filed in time. From this order the defendant appealed.

A. Thomas, for Appellant.

Latimer McCullough, for Despondent.