M. Cooney, for the appellant. E. N. Deuprey, for the respondents. MCKEE, J. This is an appeal from an order granting a new trial. Unless such an order has been made upon some legal proposition, which may be considered in itself, a stronger showing is required to justify this court in interfering with it than with an order refusing a new trial: Mehan v. The C., R. I. & P. R. Co., 55 Iowa, 308. In the order appealed from no reasons are stated why, or upon what proceeding, a new trial was granted. The record, however, shows that "the motion was heard and submitted by the defendant upon the minutes of the court only, no statement, bill of exceptions or affidavits being by him filed or proposed. But the notice of the motion, which was filed within statutory time after the verdict of the jury, designated that the motion would be made for all the causes specified in section 657, C. C. P., upon a statement of the case. This notice was filed and served on the seventeenth of March, 1882; and, having given it, the moving party was bound to prepare and serve his proposed statement within the time allowed by law for that purpose. Subdivision 3 of section 659 declares: "If the motion is to be made upon a statement of the case, the moving party must, within ten days after service of the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party." This the moving party did not do; he took no steps for enlarging the time for filing such a statement, and he suffered the statutory time to elapse without filing it. As, therefore, there was no application for an extension of time to file a statement, and no statement was, in fact, ever filed, the right to move for a new trial was waived, and became lost: Campbell v. Jones, 41 Cal., 515; Thompson v. Lynch, 43 Id., 482; Stoyell v. Cole, 19 Id., 602. But it is claimed that the right was not lost, because the original notice of motion was amended, so as to designate that the motion would be made for the same causes, upon the minutes of the court. There is an amended notice indorsed, filed and served on the twentyfourth of May, 1882-more than sixty days after the filing and service of the original notice, and more than seventy days after the verdict of the jury. Filed under those circumstances, the amended notice was nugatory. The defendants could not abandon their first notice and file a second notice after the statutory time for giving the notice for motion had passed: Le Roy v. Rassette, 32 Cal., 171. The amended notice was, therefore, ineffectual to put in motion the jurisdiction of the court to grant a new trial: B. R. & A. Co. v. Boles, 24 Cal., 354; Ellsasser v. Hunter, 26 Id., 279; Allen v. Hill, 16 Id., 113. And as the right to move for a new trial upon the original notice had been waived by the defendants, and lost, the right could not afterwards be restored, even by an order of the court permitting an amendment of the original notice out of season: Thompson v. Lynch, supra; B. R. & A. Co. v. Boles, 24 Cal., 354. The order was of no force or validity, and the court should have dismissed or denied the motion for new trial for want of jurisdiction: Clark v. Crane, 52 Cal., 630. Order reversed and cause remanded for further proceedings. No. 8,690. PARDEE v. GRAY ET AL. Department One. Filed March 19, 1885. LANDLORD AND TENANT-SUB-TENANT-ESTOPPEL.-The plaintiff executed to the defendant G. a written lease of a certain lot of land, and under it the lessee entered into possession. Subsequently G. put the defendant C. in possession of a part of the lot by moving a house that C. refused to leave on to the same. Held, that by remaining in the house so moved the defendant C. became the sub-tenant of the plaintiff, and was estopped to deny such relation, and was liable to be removed, under the unlawful detainer act, on default of the lessee in paying rent. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts. M. C. Hassett, for the appellant. Frank Otis and E. B. Mastick, for the respondent. Ross, J. The plaintiff executed to the defendant Gray a written lease of a certain lot of land in the city of San Francisco, and under it the lessee entered into possession of the premises. Subsequently Gray put the defendant Canavan in possession of a part of the lot by the somewhat novel method of moving a house that Canavan refused to leave on to the leased lot. Default having been made by Gray in the payment of the rent the statutory notice was given to him and Canavan requiring the payment of the rent, or else the surrender of the possession of the premises; and default being still made, the plaintiff commenced the present action for the unlawful detention of the property. Gray suffered default in the court below, but defendant Canavan contested the plaintiff's right to recover possession from her, mainly on the ground that she did not occupy the position of sub-tenant to plaintiff. That defendant Canavan was put in possession of a portion of the leased premises by the lessee Gray is clear, and she cannot be heard to say that she was put there without her consent. She was not obliged to go or remain there. We are of opinion that she must be regarded as having entered under Gray, and therefore as the subtenant of the plaintiff, and of course subject to be removed, under the unlawful detainer act, in default of payment of the rent by the lessee. The notice served on the defendants requiring the payment of the rent due, or, in default thereof, the surrender of the premises, was in substantial compliance with the provisions of the statute. The questions to the defendant Canavan, which were ruled out by the trial court, and to which ruling exceptions were taken, were subsequently answered in substance by the witness, and, therefore, whatever error there may have been in the rulings was cured. There is no substantial error in the record and the judgment and order must be affirmed. So ordered. MCKINSTRY, J., and MCKEE, J., concurred. No. 8,692. MONROE v. COOPER. Department One. Filed March 19, 1885. CONFLICTING INSTRUCTIONS-REVERSAL OF JUDGMENT.-Where the instructions are in direct conflict upon a material issue in the case, the judgment will be reversed. APPEAL from a judgment of the superior court of Monterey county, and from an order denying a new trial. The opinion states the facts. W. H. Webb, and Jas. A. Wall, for the appellant. S. F. Geil, and H. V. Morehouse, for the respondent. Ross, J. Among other matters, the defendant sets up, in his answer, that the plaintiff took his sheep under a contract of agistment, and that by reason of negligence on plaintiff's part, a large number of the sheep perished, to defendant's damage, etc. The fifth instruction given by the court below, to the jury, is as follows: "If you should find, from the evidence, that plaintiff took and kept the defendant's sheep to supervise, care for and pasture, for a compensation to be paid by defendant, the plaintiff thereby became, and was, the bailee of said sheep, for defendant, and the law imposed on plaintiff the duty of properly supervising, caring for and pasturing said sheep, and, if any loss, damage or injury occurred to said sheep while in the possession of plaintiff, the burden of proof is cast upon him to account for and to prove that such loss, damage or injury was not owing to his negligence or want of care; otherwise he is liable to defendant for such loss, damage or injury, and you should so find." In the tenth instruction, the court said: "I instruct you that the burden of proof to establish negligence, is upon the party charging it (who was the defendant). It is not enough for him to prove that he has suffered loss by some event which happened, or by the act or omissions of the party charged; he must also prove that the party charged with negligence violated a duty resting upon him. He must prove facts from which it can be fairly inferred that the party's negligence caused the injury complained of. He is not bound to prove more than enough to raise a fair presumption of negligence on the part of the party charged, and resulting in injury to himself. Having done this, he is entitled to recover, unless the party produce evidence sufficient to rebut the presumption." The instructions quoted are in direct conflict upon an important question in the case, for which reason the judgment and order must be reversed and the cause remanded for a new trial. In the one, the jury was told that the burden of proof was upon the plaintiff to account for the loss of the sheep; in the other, that the burden was upon the defendant to show that the loss occurred through the negligence of the plaintiff. Judgment and order reversed, and cause remanded for a new trial. MCKINSTRY, J., and MCKEE, J., concurred. EJECTMENT Department One. Filed March 19, 1885. DEED GIVEN AS SECURITY FOR DEBT- REDEMPTION JUDGMENT.-In an action of ejectment, founded on a deed absolute in form, where the answer set up that such deed was, in effect, a mortgage, given by the defendant as security for a debt due the plaintiff, and the court so finds, the judgment should provide that in the event of the defendants' nonpayment of the mortgage debt within a time limited, the property should be sold and the proceeds applied to the payment thereof. APPEAL from a judgment of the superior county of San Francisco, entered in favor of an order denying the defendants a new trial. facts. George D. Shadburne, for the appellants. court of the city and the plaintiff and from The opinion states the Ross, J. The action is ejectment, based on a deed from the owners of the property absolute in form. The answer of the defendants, who are husband and wife, denies the alleged ownership of the plaintiff, and then sets up that, although absolute in form, the deed was given only as security for certain moneys to be, and which were, advanced by the plaintiff to the defendant Matthias O'Brien; states the terms of the agreement under which the moneys were so advanced, alleges the willingness and readiness of the defendants to carry out the contract, and prays, among other things, that the deed be decreed a mortgage, and for such other and further relief as to the court seems proper. After trial, the court below found that the deed was given as security only for certain moneys to be advanced to and for the use and benefit of the defendants, and which moneys were so advanced by the plaintiff and amounted to the sum of three thousand dollars, which sum is, and has been, according to the findings, due and owing from defendants to plaintiff, with interest thereon at the rate of ten per cent per annum, from the first day of February, 1879. The decree of the court below is to the effect that upon the payment to the plaintiff by the defendants of the said sum of money and interest, within three months after the entry of the decree, plaintiff execute to defendants a good and sufficient deed to the property, and that in the event defendants neglect or refuse to make the payment within the time designated, "then and in that event the affirmative relief demanded by said defendants be denied, and that their bill asking for the same be dismissed." Neither party is satisfied with the decree as entered, and it is quite clear that it is not the proper decree. For the plaintiff, who is the respondent here, it is claimed that the decree should be modified by directing that it provide that on failure of the defendants to pay the money within the time specified, a writ of possession issue to put the plaintiff in possession of the property. But a little reflection will show that position to be untenable. If the deed had been what it purported to be, a deed absolute from the owners of the property, the legal title would, of course, have passed to the plaintiff, and the judgment would have been that the plaintiff recover possession of the property from the defendants. But when the court found that the deed was given only as security for money loaned, it found in effect that it was but a mortgage, and that it did not pass the legal title to the plaintiff: Taylor v. McLain, 1 West Coast Rep., 585. If, therefore, defendants had rested only on their denial of the plaintiff's alleged ownership of the property, judgment must have passed for the defendants. But, they went further, and filed what was treated by the parties and the court below as a bill to redeem. We are, therefore, not only justified in treating the pleading in the same way, but do so the more readily, because under any other view the defendants might escape the payment of the money, which they clearly and admittedly owe the plaintiff, by reason of the statute of limitations having run against an action by the plaintiff for the foreclosure of the mortgage. Treating the defendants' answer as the court below did, as a bill to redeem, the court properly designated a time within which, if the defendants paid the money, they should be entitled to a deed from the plaintiff, but, instead of providing that in default of such payment" the affirmative relief demanded by said defendants be denied, and that their bill asking the same be dismissed," should have provided for a sale of the mortgaged premises to pay the mortgage debt. No costs on this appeal will be recovered by either party. Order denying new trial affirmed and cause remanded, with directions to the court below to modify the judgment in accordance with the views here expressed. MCKEE, J., and MCKINSTRY, J., concurred. |