Where a cause has been referred to a referee, who returns his decision and judgment to the court, the date of their filing, is to legal intent, the date of their rendering, and they have not until then a legal existence upon which a motion for a new trial might be based.

Stipulated statements, notices, or other proceedings, had before the date of such filing, are wholly insufficient as a basis of a motion for a new trial.

Department 1.

Metcalf & Metcalf, for plaintiff and appellant.

R. B. Canfield, for defendant and respondent.

MCKEE, J. The appeal in this case is from an order granting a new trial. The motion for a new trial was heard and determined upon an authenticated statement of the case. At the hearing appellant's attorney objected to the motion, and moved to dismiss it, upon the ground that no notice of it has been given according to law. The objection was overruled. It appears that the case arose out of an action for the dissolution of a partnership and a settlement of the partnership affairs. By an order of the court the case was sent to a referee to take the testimony and an account, and report the same, with his decision and judgment, to the court. On January 9, 1882, the referee, after having taken the testimony and stated an account, which showed a balance due to the plaintiff, prepared his finding of facts and conclusions of law, and a judgment thereon, which he presented with his report to the clerk of the court, to be filed, under the provisions of section 644, Code Civil Proc. But the attorney for the defendant appeared and objected to the filing of the same, and, at the same time, applied to the court for time to prepare and serve objections to the decision and judgment. The court granted him until January 23, 1882, to prepare and file such objections, and ordered. the clerk to retain the custody of the report, decision, and judgment, and not to file the same until the further order of the court. Eight months thereafter, namely, on September 8, 1882, the court ordered that the report, decision, and judgment of the referee be filed, and the same were indorsed by the clerk filed on that day. After filing, no notice of intention to move for a new trial was served or filed; but nearly seven months before the filing, namely, on February 13, 1882, the defendant served and filed such a notice, and preceded it by service of a document styled "Statement of evidence introduced. and proceedings had before the referee herein, with exceptions taken on the trial before him, proposed by defendant to be made part of the report of the referee hereinafter to be filed." And on the twenty-third

day of February, 1882, the attorneys of the parties stipulated in writing to the effect that the statement, with exceptions taken on the trial before the referee, and served February 3, 1882, stand also as a proposed statement on motion for a new trial, and that the motion shall be heard April 25th, unless defendant's attorney shall be absent on that day from the county of Santa Barbara; the plaintiff's attorney "reserving the right to make any legal objection and exception to the proposed statement." On March 13th an extension of time for 30 days from that date was obtained for presentation of the statement for settlement. In fact, however, the statement was not presented until May 1, 1882, and on that day the attorney for the plaintiff objected to the settlement on the ground that the statement had not been presented in time. It was settled, however, over his objections, and, as settled and engrossed, it was ordered to be filed, and was filed on September 8, 1882, with the decision and judgment reported by the referee. On that day the case was considered as tried to a legal intent. Hastings v. Hastings, 31 Cal. 95. The decision and judgment were then rendered, and, for the first time, had a legal existence upon which the right to move for a new trial could be put in motion. But the attempt to exercise the right before the decision was ineffectual for any purpose, and the proceedings under it were wholly insufficient as a basis for the motion. In Mahoney v. Caperton, 15 Cal. 314, it was so held of a notice of intention given one day day before the rendition of the judgment. And in Flateau v. Lubeck, 24 Cal. 364, it was held that a stipulated statement could not be made the foundation of a motion for new trial where no notice of intention to move had been served and filed. So, in Bear River & A. W. & M. Co. v. Boles, Id. 354, it is said: "Where no notice of intention to move for a new trial is given or waived, the making and filing of a statement does not give the court jurisdiction over the subject-matter of a new trial, and an order granting a new trial will be reversed." To the same effect will be found Ellsassar v. Hunter, 26 Cal. 279, and Calderwood v. Brooks, 28 Cal. 152.

Order reversed.

We concur in the judgment: MCKINSTRY, J.; Ross, J.

(64 Cal. 459)

APPELGARTH V. AYBOTT and others.

Filed January 20, 1884.

The protest of a notary is only prima facie evidence of the facts contained in it, and evidence to contradict and overcome its recitals is admissible.

To bind the indorsers on a note, it must be presented to the maker at maturity, and no previous statement of intention not to pay at maturity, or other arrangement between the maker and holder, can excuse the non-presentation, so far as the indorsers are concerned, whatever effect it may have as to the maker.

Department 1.

E. J. Jackman, for plaintiff and appellant.

John L. Law, for respondents.

MCKEE, J. The question in this case involves the liability of the indorsers of a promissory note. The note upon which the question arises was made in Merced county, and was left in the Merced bank for collection. The president of the bank acted as a notary public. As notary he protested the note, at its maturity, for non-payment, and served notice of its dishonor, by mail, upon each of the indorsers. In his protest he certified that he had demanded "personally, in writing, of the maker, payment of the said note, which was refused." But on his examination as a witness he testified that the note had not been presented at maturity to the maker for payment, nor had payment thereof been demanded. What he had done was to write a letter to the maker of the note on the night of the fourteenth of August, 1879, the day the note became due, demanding of him payment of the same. This letter he inclosed in an envelope addressed to John Appelgarth, Brooklyn, California, (the reputed place of residence of the maker,) and mailed it that night, to go by mail the next day. He further testified that two or three days before the maturity of the note the maker of it came to him, as president of the bank, and told him he would not be able to take the note up at maturity. The court found that the note had not been presented at its maturity to the maker for payment, and payment thereof had not been demanded, and that the indorsers were not liable.

Two objections are made to the judgment: (1) That it was error for the court to let the notary contradict and falsify his notarial certificate; (2) that the findings are contrary to the evidence, because the evidence proved that presentment had been excused. The protest of the notary was only prima facie evidence of the facts contained in it, (section 795, Pol. Code,) and the admission of evidence to contradict and overcome its recitals was not erroneous. Section 1833, Code Civil Proc. The fact that the maker of the note before its maturity notified the president of the bank in which it was left for

collection that he would not be able to pay it at maturity did not excuse the holder from presenting it for payment in order to charge the indorsers. Non-presentation, under the circumstances, was excused as to the maker himself; and he was not entitled to notice of the dishonor of the note. Section 3156, Civil Code. But no arrangement between the maker and the holder could change the contract of the indorsers so as to affect their rights or liabilities, or to excuse performance of the conditions of the law of their contract, unless they were parties to it, or, on being informed of it, consented to it. Story, Prom. Notes, 291. The question raised has been settled by the supreme court of Massachusetts in Lee Bank v. Spencer, 6 Metc. 309. That was a suit against indorsers of a promissory note made payable at the bank. It was not presented to the bank for payment at maturity, because the promisor had formally called on the holders and informed them that it would be useless to present the note at the bank, as he could not pay it. But, said SHAW, C. J., "however this might affect the rights of the promisor, we think it did not alter the conditional obligation of the indorsers, and make them responsible without any presentment whatever." So, in Pierce v. Whitney, 29 Me. 188, it was held that the fact that the maker of a note had addressed a letter to the holder informing him that he would not be able to pay it at maturity, and requesting an extension, would be no excuse for non-presentation of the note at its maturity to the maker.

A defendant has a statutory right to have the place of trial changed to the county of his residence, and, there being no counter-motion to retain the cause for the convenience of witnesses in the county where it was commenced, the motion should have been granted.

Department 1.

J. W. Freeman, for plaintiff and respondent.

Robt. Harrison, for appellant.

MCKEE, J. In the superior court of Kern county the plaintiff commenced an action to recover judgment upon three promissory notes, made and delivered to him in that county by the defendant in the

Cal.] PEOPLE'S DITCH CO. v. KING'S RIVER & FRESNO CANAL CO. 45

action. After service of summons, the defendant moved for a change of the place of trial of the action, on the ground that he was, at and before the commencement of the action, a resident of the city and county of San Francisco. The motion was based upon affidavits, which established the fact of defendant's residence in the city and county of San Francisco. The fact was not controverted by the counter-affidavits filed by the plaintiff; nor was any counter-motion made by him to retain the cause in Kern county, on the ground of convenience of witnesses; but the court denied the motion. As the county designated in the complaint was not the proper county for the trial of the action, the defendant had a statutory right to have the place of trial changed to the county of his residence. The order of the court denying the right was therefore erroneous. Sections 395, 397, Code Civil Proc.

Order reversed and cause remanded.

We concur: MCKINSTRY, J.; Ross, J.

PEOPLE'S DITCH Co. v. KING'S RIVER & FRESNO CANAL Co.

Filed January 19, 1884.

Order appealed from affirmed; following 60 Cal. 408.

Department 1.

Brown, Daggett & Jacobs, for respondent.

H. S. Dixon, for defendant and appellant.

BY THE COURT. This case is analogous to the case of Lower King's River Water Ditch Co. v. King's River & Fresno Canal Co. 60 Cal. 408, and upon the authority of that case the order appealed from is affirmed.