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Spangel v. Dellinger

1 Cal. Unrep. 331 Court Cal. Decision date 1866-12-17 Docket No. 968 English

Judges We concur: Rhodes, J.; Sanderson, J.; Sawyer, J.

Delivered by SHAFTER, J.

Contents

Majority

p. 331
SPANGEL, Respondent, v. DELLINGER, Appellant.
No. 968;
December 17, 1866.

Headnote

New Trial. — A Motion to Strike the Statement, on motion for a new trial, from the transcript as not having been filed within the statutory time after notice to the appellant of the decision of the judge, should be sustained.

The plaintiff moves to strike the statement on motion for new trial from the transcript, on the ground that the statement was not filed within the statute time after the defendant received notice of the decision of the judge. The objection is well taken. The court had no power to amend the record after the lapse of the term. That point was decided in De Castro v. Richardson, 25 Cal. 52 .

No notice of motion to strike out was necessary under the thirteenth rule of this court. The defect was one that acl

p. 332
mitted of no remedy, and notice would therefore have been useless.

The appeal from the judgment has been dismissed already, and with the statement on motion for new trial stricken out, the plaintiff will be left without a ease.

Motion to strike out statement on new trial granted, and judgment affirmed.

We concur: Rhodes, J.; Sanderson, J.; Sawyer, J.