The Court below should not have denied the motion of the defendants for a new trial because they had not served their statement in support of the motion. They had filed it within the time provided in the stipulation of June twenty-third. Reither the stipulation, nor the statute, nor any rule of the Court below which has been called to our attention, required them to serve it. (Sec. 195.)
The point is now, however, made in argument here, that *622the motion for new trial was correctly denied, because the defendants, though they filed, did not serve their notice of intention to move for a new trial. But the answer is, that the plaintiff did not make this objection,, nor reserve his right to make it, when he proposed his amendments to the statement. Had he done so the fact of service might possibly have been shown, or a waiver of it in some way made to appear.
The action is brought to quiet the alleged title of the plaintiff" to certain mining ground, being an undivided interest in the Delphi mining claim, in Kern County. The answer denies the plaintiff’s title. On the trial the plaintiff undertook to show that he had acquired the interest and estate formerly owned by the defendants in the mine. For this purpose he offered and read in evidence, against the objections of the defendants, a conveyance made by Boss, the Sheriff of Kern County, running to the plaintiff as grantee, and purporting to convey to the latter the estate of the defendant Adams in the premises.
This conveyance in substance recites that in the Clear Creek Mining District, in Kern Comity, an assessment was levied against the owners and shareholders of the Delphi claim, for the purpose of defraying the expenses of prospecting and working it; that Adams, owner of an undivided interest, neglected and refused to pay, after notice 'given; that thereupon his interest in the claim was advertised for ten days, and was sold by the Sheriff to the plaintiff, pursuant to the provision of “An Act concerning partnerships for mining purposes,” etc. The plaintiff also read in evidence, against the objections of the defendants, a conveyance to himself, made by the Sheriff, and purporting to convey to the plaintiff the interest of Devlin, the other defendant, in the mining claim, and reciting, mutatis mutandis, the same matter recited in the Adams deed, already mentioned.
The objections taken by the defendants to the introduc*623tion of these deeds were numerous, and among the rest was the objection that there was no authority of law shown in the Sheriff to convey the property of the defendants to the plaintiff, and that the conveyances do not sufficiently set forth a compliance with the requirements of the Act of the ■ Legislature to which they refer. The argument upon either side has proceeded here upon the assumed constitutionality of the statute itself, through the provisions of which the plaintiff claims to have acquired the title of the defendants; and we shall, therefore, determine the case without reference to that question.
It will be seen that the statute (1865-6, p. 828), in the first section, distinctly designates the persons who “ shall be - subject to the provisions and liabilities imposed by the Act.” Such persons must be copartners—“ copartners for the purpose of prospecting or working said mining claim,” in the language of the statute. It is not enough that they are “owners and shareholders,” as these deeds recite that Adams and Devlin were, or that they are associated together for the purpose- of working or prospecting a mining claim on the public lands. So long as these and no other relations exist between the parties their interest in the mining claim is not subject to be divested by such proceedings as those here relied upon. Notice must first be given to such occupant, locator, or person associated, that he will be thenceforward deemed and held to be a copartner “ for the purpose of prospecting or working said mining claim.” Such a notice given to those who are owners, or shareholders, or locators, or occupants, etc., by one who is jointly concerned with them in the enterprise, would have the effect, under the provisions of the statute, to change the relations of the parties inter sese, and create a mining co-partnership between them; and only after that had been effected, a notice or notices looking to the levying of an assessment, etc., under section two of the Act,' etc., may be *624served, and other proceedings taken, according to the further provisions of the statute. There is no authority whatever to proceed as here attempted under the statute, unless the mining copartnership be first created between the parties; and there being no evidence tending to show that fact, the Court below should have excluded the conveyance offered by the plaintiff.
Judgment and order denying new trial reversed, and cause remanded.
Crockett, J., being disqualified, took no part in this decision. -