McGrath v. Hyde

Opinion — Sharpstein

Sharpstein, J.

The transcript contains a bill of exceptions, and the appeal is from the judgment. The findings were filed on the seventh day of January, 1885, and the notice of appeal on the tenth day of October, 1885.

As the appeal was not taken within sixty daj'-s after the rendition of the judgment, we cannot review an exception to the decision on the ground that it is not supported by the evidence. (Code Civ. Proc., sec. 839.)

The finding, “ that the said Michael Hyde did not *39at any time deliver said deed to said Ellen Hyde, the person named therein as grantor,” is attacked by appellant on two grounds: 1. That it is not supported by the evidence; 2. That it is outside the issues.

For reasons already stated, we cannot consider the first of these grounds, and the second, in our opinion, is untenable.

The allegation of the complaint, “ that if the said Michael Hyde ever signed or acknowledged the said instrument, he was forced and unduly influenced to do so by the defendant, and he had not then, or at any time since the eighth day of May, 1882, sufficient strength of mind or body to execute or deliver the said deed, or to understand its provisions or covenants, and the said deed never was delivered by said Michael Hyde to the defendant,”—in our opinion, is an allegation of non-delivery of the deed. This and all the other allegations of the complaint were denied by the answer of the defendant. That, we think, presented an issue upon which it was the duty of the court to find.

As the court found upon all the issues, and the findings support the judgment, it must be affirmed.

Judgment affirmed.

McFarland, J., Fox, J., Thornton, J., Works, J., and Paterson, J., concurred.