L. O. MIX, Appellant, v. SAN DIEGO AND CUYAMACA RAILROAD COMPANY et al., Respondents

[No. 13857. Department One. — October 27, 1890.] L. O. MIX, Appellant, v. SAN DIEGO AND CUYAMACA RAILROAD COMPANY et al., Respondents. Appeal — Review op Nonsuit—New-trial Statement sot Filed.— A statement on motion for trial copied into the transcript on appeal, which does not appear to have been filed after it was settled, is no part of the record, and cannot be considered in aid of the appeal, or in review of an order granting a nonsuit. Id.—Appeal from Judgment — New-trial Statement not Used.— If the record does not show that a statement of the case was used on motion for new trial, it cannot be made the basis of an appeal from the judgment. Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. The facts are stated in the opinion of the court. Cassius Carter, S. C. McCormick, and Leovy & Humes, for Appellant. Hunsaker, Britt & Goodrich, for Respondents. [MAJORITY — Works, J.] Works, J. This is an appeal from a judgment of nonsuit. A statement of the case is copied into the transcript, but it does not appear to have been filed in the court below after it was settled. This being so, it is no part of the record, and cannot be looked to in aid of this appeal; and as the only ruling complained of depends upon the evidence given at the trial, the position taken by the appellant has nothing to support it. (Mills v. Dearborn, 82 Cal. 51, 55.) Besides, it does not appear that the statement was used on motion for a new trial, and for that reason it cannot be the basis of an appeal from the judgment. (Jue Fook Sam v. Lord, 83 Cal. 160.) Judgment affirmed. Fox, J., and Paterson, J., concurred.