Bernard v. Sloan

[747]

LORIGAN, J.

Motion to dismiss the appeal upon the ground,—1. That no proper undertaking on appeal has been filed; and 2. That no transcript on appeal in the case has been filed.

Our attention has not been directed in any manner, by counsel moving to dismiss, to any defect in the undertaking.

There is an undertaking on file which appears to be regular in form, and we will not examine it critically to discover some possible defect which has not been pointed out to us.

As to the failure to file the transcript: The appeal was taken in due time, so as to permit any statement on motion for a new trial settled by the lower court, and used on the hearing of said motion, to be used on appeal from the judgment. The record shows that notice of intention to move for a new trial was duly served and filed in the lower court, and that the statement on motion therefor is in process of settlement.

These facts bring the present motion within the rule laid down in

Wall

v.

Mines,

128 Cal. 136, and

Kelly

v.

Ning Yung Benevolent Assn., ante,

p. 602, and without further discussion, and on the authority of those cases, the motion to dismiss the appeal is denied.

Van Dyke, J., Shaw, J., Angelíotti, J., McFarland, J., Beatty, C. J., and Henshaw, J., concurred.