Smith v. Davis

Decided July 1, 1880

California Supreme Court · decided 1880-07-01

Appeal from a judgment for the defendants, and from an order denying a new trial, in the Eighteenth District Court, County of San Bernardino. McNealt, J. The transcript contains the original draft of a statement proposed by the plaintiff, amendments proposed by the defendants, and counter-amendments proposed by the plaintiff; and the following certificate of the «Tudge: “The foregoing amendments proposed by defendant are allowed, and the further proposed amendment by plaintiff is also allowed; and said statement of plaintiff as amended is hereby settled as correct. W. T. McNealy, District Judge.” The action is for the recovery of personal property. The answer denies all the allegations of the complaint, except the taking, and alleges in effect that the defendant took the goods as Sheriff of San Bernardino County, by virtue of executions against the plaintiff’s vendor (Gilman) ; and that the property was, at the time of the levy, the property of said Gilman, and that all interest of the plaintiff in the property was by virtue of a pretended sale to her by the said Gilman; and that the said sale is and was void, and fraudulently made for the purpose of hindering, delaying, and defrauding creditors of said Gilman, and without any consideration from plaintiff. The other facts are stated in the opinion.

Cited by 1 later decisions — most recently May 1884

1 state decisions

Relies on Baldwin v. Ferre

Good law ✅— No negative treatment on recordhow we know

Decided 1880-07-01

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By the Court (from the Bench) :

¶1In this cause there is no statement on motion for a new trial which this Court is authorized to consider.

¶2It appears that the proposed statement and amendments were allowed by the Judge of the Court below, but the statement and amendments were never engrossed and authenticated by the signature of the Judge.

¶3Such documents, not engrossed into one, and attested by the signature of the Judge, have never been regarded as the statement required by law, and have never been considered by this *28Court on appeal. (Baldwin v. Ferre, 23 Cal. 461.) The order denying the motion for a new trial must therefore be affirmed.

¶4There was also an appeal from the judgment. The only point to which our attention is called in the last-mentioned appeal is the order overruling the demurrer to the amended answer of the defendant.

¶5We have examined the answer carefully, and fail to find any errors in the ruling of the Court.

¶6Judgment and order affirmed.