Le Roy v. Rassette — 32 Cal. 171

Majority

p. 171

THEODORE LE ROY v. EMERANTIENNE RASSETTE.

Headnote

New Trial.—If the party intending to move for a new trial does not file his statement within five days after giving notice of such intention, the statement should be disregarded.

Idem.—A party giving notice of motion for a new trial is bound by that notice. He cannot afterwards give a second notice, and file his statement within five days of the second notice, but more than five days after the first notice.

Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

Defendant recovered judgment in the Court below, and the plaintiff appealed. The respondent renewed his motion to strike out the statement in the Supreme Court.

The other facts are stated in the opinion of the Court.

Edward J. Pringle, for Appellant.

Clarke & Carpentier, for Respondent.

Motion to strike out statement. The findings were filed April 2d, 1866. Notice of the filing was given to the appellant on the 1st of May thereafter. The appellant gave notice of intention to move for a new trial on the 4th of May, and gave a new but like notice on the 11th of the same month. The appellant filed his proposed statement on the 16th of May, to which the respondent objected and moved to strike it out. The motion was denied.

The plaintiff had ten days within which to give notice of

Dissent

p. 172

his intention to move for a new trial after receiving notice that the findings had been filed. But having elected to give his notice of intention on the 4th of May, he was bound by that choice for all the purposes of further procedure. This follows from the provision: 66 If no affidavit or statement be filed within five days after the notice * * # the right to move for a new trial shall be deemed waived.” (P. A. Sec. 195.)

Motion granted.

I dissent.

Mr. Chief Justice Curret did not express any opinion.