Turner v. Ten Winkel Co.

LENNON, P. J.

In this action for money had and received the plaintiffs sought and recovered judgment in the sum of $335.25 against the defendants and each of them,—namely, F. W. Ten Winkel Company (a Copartnership) and F. W. Ten Winkel and L. F. Gump. An appeal was taken from the judgment and from an order denying a new trial. Plaintiffs and respondents in due time moved to dismiss both appeals upon various grounds. Subsequently the appeal from the judgment was dismissed pursuant to the stipulation and consent of all of the parties to the action. The motion to dismiss the appeal of the copartnership defendant from the order denying a new trial was made, argued, and submitted for decision in advance of the consideration of the appeal upon its merits. That motion was based upon the ground that said defendant did not at any time make, file, or serve any notice of intention to move for a new trial of the action, or join with its codefendants in making such motion.

The motion to dismiss, based-as it is entirely upon the ground stated, cannot be entertained. An appeal is given as a matter of right from an order granting or denying a motion for a new trial; and, when properly taken and perfected, this court has jurisdiction to and must hear and determine- the same upon its merits, notwithstanding an alleged irregularity or defect in the procedure, prescribed -as a preliminary to the presentation of a motion for a new trial.

(Fish

v.

Benson,

71 Cal. 428, [12 Pac. 454] ;

Centerville etc. Co.

v.

Bachtold,

109 Cal. 111, [41 Pac. 813];

Bell

v.

Staacke,

137 Cal. 307, [70 Pac. 171].) Accordingly it is the rule that a failure to give notice of intention to move for a new trial is not -a recognized ground for dismissing an appeal from an order denying a new trial.

(In re Ryer,

110 Cal. 556, [42 Pac. 1082];

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