Appeal from the District Court, Third Judicial District, Santa Clara County.

This was a proceeding instituted by the plaintiff in said Court under the provisions of the Act of the Legislature, entitled “An Act to provide for the incorporation of railroad companies, and the management of the affairs thereof,” etc., approved May 20th, 1861, to condemn certain lands of the defendants—forty-four in number—to secure the right of way through the same for the plaintiff’s line of railroad. The Commissioners who were appointed to assess the damages to he paid by plaintiff for the right of way, as prayed, in due course made their report to said Court, which included the evidence taken by them, awarding damages in various sums to the several defendants; which report was confirmed by the Court, and judgment rendered in accordance therewith. Previous to the confirmation of the report, plaintiff moved to set it aside; also, to set aside certain portions thereof specified, upon the ground that the evidence taken before the Commissioners, and contained in their report, was insufficient to justify the several awards of damages made therein, or the award of any damages whatever, and to grant a new trial; which motion was denied by the Court, and plaintiff duly excepted. Said motion was based on the report itself; and upon the denial thereof, a bill of exceptions containing the grounds thereof, and said report of the Commissioners, was settled and filed by the Judge of said Court. The plaintiff appealed from said judgment, and from the orders denying said motion and confirming the report of said Commissioners.

Defendant James Murphy moved in this Court to dismiss the appeal as to him, on the ground that the plaintiff had not, in its said motion to set aside said report and for a new trial, complied with the provisions of the Practice Act in relation to motions for new trials.

The other facts are stated in the opinion of the Court.