[L. A. No. 956.

Department One.

January 17, 1902.]

#### ANDREAS MACHADO et al., Appellants, v. ABBOT KINNEY et al., Respondents.

Appeal—Order Denying New Trial—Absence of Statement or Bill of Exceptions—Affirmance.—Where there is no settled statement or bill of exceptions to be used upon a motion for new trial, the order denying the' new trial must be affirmed upon appeal therefrom.

Id.—Refusal to Settle Statement—Review upon Appeal—Mandamus.—The refusal of the court to settle the statement on motion for new trial cannot be reviewed upon appeal from the judgment and order denying a new trial. The remedy therefor is by *mandamus.*

Id.—Action to Quiet Title—Strip of Land—Inconsistent Findings —Judgment—Admission of Pleadings—Disregard of Finding.— In an action to quiet title to a strip of land described in the complaint, the existence of which is admitted in the pleadings of all parties to the suit, and which the findings and decree deal with and dispose of, a finding that there was no such strip of land as described in the complaint is inconsistent with the other findings, and with the judgment, and must be disregarded as immaterial to the case made by the pleadings.

Id. — Appeal—Absence of Evidence—Construction of Findings—Reversal not Justified.—In the absence of the evidence, a finding which may possibly be construed either as inconsistent or as consistent with the pleadings, the other findings, and the judgment, cannot, upon either construction, furnish ground for reversal of the judgment.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Lueien Shaw, Judge.

The facts are stated in the opinion.

A. B. Hotchkiss, for Appellants.

John D. Pope, and R. R. Tanner, for Respondents.

GRAY, C.

Action to ■ quiet title and for damages. Plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

1. The notice of intention to move for a new trial does not appear in the record, hut we infer from the fact that appel*355lants endeavored to have a statement on motion for new trial settled, that the notice of intention specified that the motion for new trial would he heard on a statement of the case. No statement or bill of exceptions to be used on said motion was settled by the court; the order denying the motion for a new trial must therefore be affirmed. *(Sutton*v. *Symons,*100 Cal. 576; *Budd*v. *Drais,*50 Cal. 120; *Symons*v. *Bunnell,*101 Cal. 223; *Henry*v. *Merguire,*106 Cal. 142.)

2. On this appeal we cannot review the action of the court refusing to settle the statement on motion for new trial. The remedy for fhat is pointed out in *Hudson*v. *Hudson,*129 Cal. 141.

3. It is urged that the finding to the effect that there is no strip of land such as claimed by appellants in their complaint is inconsistent with the other findings and with the judgment; and so, indeed, it seems to be. More than' this, it is inconsistent with the issues as framed in the pleadings. All parties to the suit, so far as can be gathered from the pleadings, proceeded upon the theory that there was a strip of land as described in the complaint. The findings and decree deal with and dispose of this same strip of land. We, therefore, think that the finding that there was no snch strip of land is contrary to the admissions contained in the pleadings of all the parties to the suit, and is inconsistent with and contradictory of the other findings in the ease, and should be disregarded as entirely immaterial to the case made by the pleadings. *(Ortega*v. *Cordero,*88 Cal. 221; Rudel v. *Los Angeles Co.,*118 Cal. 281; *Hall*v. *Arnott,*80 Cal. 348.)

We have treated the finding complained of thus far as it seems to be treated in the briefs of at least two of the parties to this appeal. It is difficult, in the absence of the evidence, to understand the meaning of this finding. It is not unreasonable to suppose, however, that the court intended by it simply to find that certain conveyances conveyed the land so that one of its boundaries was “the Pacific Ocean at the line of ordinary high tide,” and that -there was no strip of land between the land described in these conveyances and the Pacific Ocean, and no strip of land between two certain ranches, but that said ranches had a common boundary between them. Thus understood, the finding would not be inconsistent with the pleadings, the other findings, or with the *356judgment. Whichever construction may be given the finding, it furnishes no ground for reversal of the judgment.

The judgment and order appealed from should be affirmed.

Chipman, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Harrison, J., Van Dyke, J., Garoutte, J.