Page images
PDF
EPUB

of said Forman the sum of $2,200 and executed and delivered to him a release in writing, of which the court and plaintiff herein were ignorant; and about two weeks thereafter the court rendered its decision and judgment in favor of defendant herein, and against said Harris, Forman, and the plaintiff herein, for the sum of $6,223.41, together with the costs, being the full amount sued for in said action. Thereafter an execution was issued upon said judgment for the amount thereof, less said sum of two thousand two hundred dollars, and certain real and personal property of the plaintiff herein were levied upon and advertised for sale under and by virtue of said exer cution. For the purpose of preventing the sale of said property and obtaining its release from said levy, plaintiff paid to the sheriff making the levy the sum of $4,315.99, the full amount due upon said execution, with all costs, which was paid to the defendant herein.

The plaintiff recovered judgment against the defendant herein for the amount so paid in satisfaction of said execution, and from that judgment, and from the order denying defendant's motion for a new trial, this appeal is prosecuted.

The main question presented here is, whether the release of Forman relinquished the obligation of plaintiff.

The code provides that “a release of one of two or more joint debtors does not extinguish the obligation of any of the others unless they are mere guarantors; nor does it affect their right to contribution from him.” (Civ. Code, sec. 1543.)

That the plaintiff, Harris, and Forman were, upon the face of the notes which they executed to the defendant, joint debtors, is too clear to admit of doubt, and unless the plaintiff was a mere guarantor, his obligation was not extinguished by the release of Forman. But the court, by request of plaintiff, instructed the jury that “a release of one of two or more sureties without the consent of the

other co-sureties is a release of all the sureties." This is clearly contrary to the provision of the code relating to the same subject, and "the code establishes the law of this state respecting the subjects to which it relates."

The instruction being clearly erroneous, the judgment and order must be reversed.

Judgment and order reversed.

THORNTON, J., and McFARLAND, J., concurred

Hearing in Bank denied.

(No. 12093. In Bank.- April 28, 1888.) AUGUST HEILBRON ET AL., RESPONDENT, v. CENTER

VILLE AND KINGSBURG IRRIGATION DITCH COMPANY, APPELLANT.

APPEAL FROM JUDGMENT-TIME FOR TAKING-DISMISSAL.-An appeal

from a judgment must be taken within one year after its entry; if

taken subsequently, the appeal wi}l be dismissed. ID.-RULING ON DEM URRER—How REVIEWED.-Alleged error in over

ruling a demurrer to the complaint can be reviewed only on an appeal from the judgment, and not on an appeal from an order denying a

new trial. ID.-FINDING-INSUFFICIENCY OF EVIDENCE-SPECIFICATION OF PARTIC

ULARS.-A finding against the issue raised by a plea of the statute of limitations will not be reviewed on appeal, on the ground that it is not justified by tbe evidence, when the statement on motion for a new trial fails to contain a specification of the particulars in which the evidence is alleged to be insufficient. A general specification that the court erred in finding as it did, and in not finding contrary there. to, is insufficient to present the question.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial

The facts are stated in the opinion.

W. D. Tupper, for Appellant
Brown & Daggett, for Respondents

BELCHER, C. C.- The plaintiffs commenced this action to obtain an injunction restraining the defendant from diverting the waters of Kings River, and to recover damages for past diversions. The defendant demurred to the complaint, and its demurrer was overruled.

It then answered, and among other things, set up the statute of limitations. The case was tried by the court without a jury, and the findings and judgment were in favor of the plaintiffs. The defendant moved for a new trial, and has ap pealed from the judgment and order denying its motion.

The judgment was entered on the twelfth day of September, 1885, and the appeal was taken on the first day of March, 1887. As more than a year elapsed between the entry and the appeal, the appeal from the judgment cannot be considered, and must be dismissed.

It is claimed for the appellant that the demurrer to the complaint should have been sustained. The point is not well taken. The ruling on a demurrer is a matter to be reviewed on an appeal from the judgment, and not on an appeal from an order denying a new trial. Beside, on an appeal from an order refusing to grant a new trial, only such errors can be considered as are specified in the statement, and this alleged error is not specified or referred to in the statement presented here. (Code Civ. Proc., sec. 659, subd. 3.)

It is further claimed that the action was barred by the statute of limitations, and that the findings of the court to the contrary were not justified by the evidence.

This point cannot be maintained. At the conclusion of the evidence and rulings set out in the statement on motion for a new trial, the statement proceeds as follows: “And the defendant assigns and specifies the following as errors occurring at the trial”; and then follows a statement of twenty-one instances in which it is alleged the court erred; and among them are these:

“The court erred in finding in its findings of facts

[ocr errors]

that the diversion of water by the defendant from Kings River had not been made continuously, uninterruptedly, or peaceably, for a period of five years prior to the filing of plaintiffs' complaint, and in not finding to the contrary thereof."

“The court erred in its findings of law that the cause of action was not barred by the statute of limitations."

The code provides that “when the notice of the motion designates, as the ground of the motion, the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates, as the ground of the motion, errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement shall be diregarded on the hearing of the motion.” (Code Civ. Proc., sec. 659, subd. 3.)

It is evident that the specifications above noted are quite insufficient to meet the requirements of the code, and they must therefore be disregarded. (Smith v. Christian, 47 Cal. 18; Shepherd v. Jones, 71 Cal. 223.)

The other points in the case are fully met and answered by the decision lately rendered in Heilbron v. Fowler Switch Canal Co., 75 Cal. 426.

The appeal from the judgment should be dismissed, and, on the authority of the last-named case, the order denying a new trial should be affirmed.

[merged small][ocr errors]

FOOTE, C., concurred.

HAYNE, C., took no part in this decision.

The Court. For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed, and the order denying a new trial is affirmed.

Rehearing denied

(No. 11963. In Bank.- April 28, 1888.] AUGUST HEILBRON ET AL., RESPONDENTS, v. KINGS RIVER AND FRESNO CANAL COMPANY, APPEL

LANT.

PRACTICE—AMENDMENT OF ANSWER—DISCRETION.-It is not an abuse of

discretion for the trial court to refuse to allow an amended answer to be filed, when the matters set out therein are not substantially

different from those already pleaded in the answer on file. ID.-FINDINGS—INSUFFICIENCY OF EVIDENCE-SPECIFICATION OF PAR

TICULARS.—The sufficiency of the evidence to sustain a finding will not be reviewed unless the statement on motion for a new trial contains a specification of the particulars wherein the evidence is claimed

to be insufficient. TORT-AFFIRMATIVE RELIEF TO DEFENDANT—CROSS-COMPLAINT.-In an

action sounding in tort, the defendant cannot obtain affirmative relief

by way of cross-complaint. FINDINGS—CONFLICT OF EVIDENCE-STATUTE OF LIMITATIONS.— Where

the evidence is conflicting, a finding against the plea of the statute

of limitations will not be held unsupported by the evidence. LANDLORD AND TENANT—INJURY TO LEASEHOLD-ACTION BY TENANT.

A tenant for years in the possession of the leased property may maintain an action for any injury which interferes with his possession or

the use and enjoyment of the property. RIPARIAN RIGHTS-UNLAWFUL DIVERSION—LIABILITY OF DIVERTOR.

An unlawful divertor of the waters of a natural stream cannot escape from liability to a riparian proprietor for his wrongful acts, by

showing that other persons were making similar unlawful diversions. FINDINGS.—The findings held to cover all the material issues raised by

the pleadings.

Appeal from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.

The action was brought to recover damages caused to plaintiffs' lands by reason of the acts of the defendant in diverting the waters of a natural watercourse called Kings River, and also to obtain a perpetual injunction restraining defendant from diverting the water, or in any manner obstructing or interfering with its free flow in the channel of the stream to plaintiffs' lands.

The amended complaint shows that plaintiffs are, and they and their grantors for more than five years prior to

« PreviousContinue »