Opinion
Civ. No. 1180.
December 11, 1912.
APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. N. P. Conrey, Judge.
The facts are stated in the opinion of the court.
J. F. Conroy, for Appellants.
H. H. Appel, and J. L. Fleming, for Respondent.
Action to quiet title. Judgment went for defendants. Thereafter the court made an order granting plaintiff a new trial. Defendants appeal from this order.
The grounds upon which a reversal is urged relate to alleged erroneous rulings in the proceedings for the allowance and settlement of the statement used in support of the motion.
It appears that two actions were pending in the trial court, one of which, numbered 72113, entitled William F. McCann v. Mary McCann (an opinion in which an appeal to this court was this day filed, Civ. No. 1181), post, p. 567, [ 129 P. 965], was for unlawful detainer; the other, numbered 70875, being likewise entitled, was an action to quiet title. While the cases were tried separately, it was by the parties stipulated that the evidence taken in the unlawful detainer case should, in so far as the court deemed it applicable, be considered as evidence in the suit to quiet title (which is the case at bar now under consideration). Judgment was rendered in both cases for defendants. Thereafter, plaintiff gave notices in both cases of his intention to move for a new trial upon a statement of the case. In due time he presented to the court for settlement as a statement in both cases a document wherein it was stated: "This bill of exceptions and the statement of facts herein is made a part of the foregoing statements on motion for a new trial in both cases, having the same title and numbered respectively No. 72113 and 70875." Defendants objected to the settlement of the proposed statement for use in support of plaintiff's motion for a new trial in the case to quiet title, No. 70875, upon the ground that it also purported to be a statement on motion for a new trial in the action numbered 72113 for unlawful detainer, and further, that the testimony and proceedings had in the unlawful detainer case, No. 72113, as disclosed by the statement, were not relevant or material to the action brought to quiet title. These objections were by the court overruled and the document allowed and settled as a statement on motion for a new trial, to be used in support of the motions made in both cases; to all of which defendant excepted.
We think the stipulation is a sufficient answer to the objection urged against the settlement. Since defendant agreed that the evidence adduced in the trial of the unlawful detainer case should, in so far as the court deemed it pertinent and applicable, constitute the evidence in the case to quiet title, she is in no position now to object to the evidence being incorporated in the statement upon the ground that it is irrelevant and immaterial. Defendants offered no amendments to the proposed statement in support of the motion; hence, upon being settled and allowed by the trial judge, we must assume that it constitutes a correct statement of the evidence upon which the court in the first instance rendered its decision and upon which it subsequently made the order granting a new trial herein. The fact that it also constituted a statement on motion for a new trial in the other case did not affect its validity or use as a statement in the case at bar.
The statement is indorsed: "Filed September 14, 1910, C. G. Keyes, Clerk." Appellants now for the first time make the point that the statement, notwithstanding the indorsement thereon, was not filed with the clerk. This contention is based upon the fact that the successor in office of C. G. Keyes certifies that no statement on motion for a new trial was ever filed herein. Section 659 of the Code of Civil Procedure, provides that when a statement is settled it shall be filed with the clerk. To file a paper on the part of a party is to place it in the official custody of the clerk to be by him permanently kept among the papers of the cause, subject to the inspection of parties entitled to inspect the same. Such act, accompanied by payment of any fee due therefor, constitutes a sufficient filing of papers. The file mark indorsed thereon by the clerk, while prima facie proof of the filing, is not the filing, but evidence thereof. There can be no doubt that the statement settled for use in both cases was, within the time prescribed therefor, deposited in the custody of the clerk for use at the hearing in support of plaintiff's motion for a new trial, and that it was so used upon the hearing of said motion. Having so deposited it with the clerk, plaintiff cannot be deprived of the use thereof in support of his motion on account of the failure of the clerk to indorse thereon the word "Filed," with the day and date of such indorsement.
The order is affirmed.
Allen, P. J. and James, J. concurred.