Warner

The defendant filed a cross-complaint in the action, in which he asked as affirmative relief that the plaintiff be required to convey to him certain described land. The plaintiff answered. Upon trial of the action, the plaintiff was, upon motion of defendant, nonsuited. The court thereupon proceeded to a trial of the issues made by the cross-complaint and answer thereto, and when the defendant had concluded his evidence in support of his cross-complaint, the court, on motion of plaintiff, granted a nonsuit as to the matters alleged in said cross-complaint. From this judgment the defendant appeals.

1. The appeal in this case was taken more than sixty days after the rendition of the judgment of nonsuit, and the respondent insists that as the determination of the question whether the nonsuit was proper actually depends upon the sufficiency of the evidence to sustain the allegations of the cross-complaint, the appeal was not taken in time. This view finds support in the opinion of Mr. Justice Works in Miller v. Wade, 87 Cal. 410 , but was not concurred in by a majority of the court in that case, and it cannot be sustained without overruling previous decisions in which it was…