Opinion
Department Two
Appeal from a judgment of the Superior Court of Sonoma County, and from an order refusing a new trial.
COUNSEL:
In this case the court denied the motion for a particular reason, "that a new trial was not the proper remedy," so that the rule that when it does not appear upon what ground the decision was made, it will be presumed to have been made upon any ground upon which it can be supported, cannot be invoked to authorize the presumption that the motion for a new trial in this case was denied for want of notice. (Girdner v. Beswick , 69 Cal. 119; Gray v. Nunan , 63 Cal. 220.) The contract was entire, and the court erred in accepting the Rock Pile Creek as a dividing line of the lands held in common because the same was agreed upon in the contract, without also giving effect to all the other parts of the contract, and should have disregarded all the agreement, and proceeded to make partition without reference to the contract, or else should have enforced all parts of it. The court in effect made a new contract for the parties, different from the one they executed. The court could not change the terms of the stipulation, and the whole stipulation must be enforced, or no part of it. (Himmelmann v. Sullivan , 40 Cal. 125; Hathaway v. De Soto , 21 Cal. 192.) If said contract was valid, and plaintiff wished to enforce it, it should have brought an action for specific performance, in which the court could have given effect to all parts of the contract. (Porter v. Atherton , 32 Cal. 420.)
Thomas J. Geary, for Appellant.
J. H. McGee, and W. F. Russell, for Respondent.
The notice of intention to move for a new trial constitutes no part of the record. ( Code Civ. Proc., secs. 661, 959; Hook v. Hall , 68 Cal. 23.) It cannot be presumed from the naked fact that a statement or affidavits were filed that a notice of motion was given or waived when the motion is denied. (Dominguez v. Moscotti , 74 Cal. 269.) The object of the stipulation was twofold: one to effectuate a settlement of the case then pending, and partition the common lands, which could be done in court, and one to settle the value of individual land mixed up and lying among the various tracts of land, which could only be done outside of court. These objects were independent, severable, and divisible. One part of the stipulation was to be carried out by the court; the other was to be left to the parties to be carried out.
JUDGES: Thornton, J. McFarland, J., and Sharpstein, J., concurred.
OPINION
THORNTON, Judge
[18 P. 649] We think that the record here shows that the notice of intention to move for a new trial was properly and duly given. We find in the order denying the motion that the court below denies it on the ground that "a motion for a new trial is not the proper remedy." If the notice of intention to move was not given at all, or was not given in time, the court might and would have denied the motion for a new trial on one or the other of such grounds.
The ground on which the court rested its denial of the motion satisfies us that the notice for a new trial was in all respects regular, and that [18 P. 650] there is no ground to indulge the presumption that the notice of intention was not given at all, or not given in time, and on one or the other of such grounds, that the motion was denied.
The court decided the cause on a stipulation or contract made between the parties to the action in regard to the partition of the lands involved in this case, and other lands not involved herein. The contract was entire, its terms being dependent, and in our judgment the court erred in selecting a portion of the contract and ruling on it, and disregarding other portions of it. No one can say on reading the contract (which seems to have been filed as a stipulation in the cause) that the defendant consented or would have consented to the partition of the land involved in this action, unless the provisions of the contract in regard to the other lands were also carried out.
We are of opinion, therefore, that there was no evidence to justify the decision of the court. If the defendant refused to carry out his contract with the plaintiff, the plaintiff has its remedy by an action for specific performance.
The judgment and order must be reversed and the cause remanded. So ordered.