The appeal from the alleged order denying a new trial should be dismissed because no motion for a new trial was made in the Court below, or before the Judge of said Court at Chambers, and because no notice was given or statement filed for a new trial after the decision of the Court below was rendered.
The verdict of the jury incases of equity is simply advisory to the Court. (Still v. Saunders , 8 Cal. 281.) The defendant made no exception to the decision of the Court and gave no notice of motion, and filed no statement on motion for a new trial after such decision was rendered. The decision of the Court below will be presumed to have been correct, and sustained by the evidence in the action, unless the contrary is affirmatively shown by the record. (Hastings v. Cunningham , 35 Cal. 549.) In chancery cases the correctness of the decision of the Court must be determined from the record. (8 Cal. 281.)
JUDGES: McKinstry, J. Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.
OPINION
McKINSTRY, Judge
The appeal from judgment was not taken within one year after the judgment was entered. (Prac. Act, Sec. 336.)
No motion for a new trial was made after the decision of the Court below was rendered. A portion only of the issues raised by the pleadings were submitted to a jury. The verdict was but advisory, so that all the issues were determined by the Court. In an equity case, where all the issues are not passed on by the jury, the trial is not terminated when the verdict is rendered, and the special verdict is to be regarded as a portion of the findings of the Court.
The view we have taken is not in conflict with Allen v. Hill (16 Cal. 113), nor with Ellsassar v. Hunter (26 Cal. 284), cited by respondent.
Appeal from judgment dismissed and order denying a new trial affirmed.