Sutter County v. Tisdale

60 P. 757, 128 Cal. 180, 1900 Cal. LEXIS 566

Opinion

THE COURT.

The respondent’s motion to dismiss the appeal from the judgment upon the ground that it was not taken within the time allowed by law must he granted. The judgment appealed from was entered October 22, 1898, and the notice of appeal was not given until June 28, 1899. The respondent has also moved to dismiss the appeal from the order denying a new trial, upon the grounds that no notice of the intention to move therefor was served on certain of the codefendants, and also -that the notice of appeal was not served upon said codefendants, and that the' transcript fails to contain any evidence of such service. At the hearing of the motion the appellants produced and filed affidavits showing that the notice ■of intention to move for a new trial, as well as the notice of appeal, had been served upon each of said codefendants. The fact of such service, rather than the evidence thereof, gives this ■court jtirisdiction to entertain the appeal, and such evidence may be shown in other modes than by being incorporated in the transcript. (Heinlen v. Heilbron, 94 Cal. 636; Knowlton v. MacKenzie, 110 Cal. 190.) The want of service of notice of intention to move for a new trial is not a ground for dismissing the appeal from the order. (In re Ryer, 110 Cal. 556.)

The appeal from the judgment is dismissed. The motion to ■dismiss the appeal from the order is denied.