Union Collection Co. v. Oliver

SLOSS, J.

The plaintiff, having recovered a judgment in the court below, appeals from an order denying its motion to dismiss the defendant’s motion for a new trial. At the outset it may b'e said briefly, that the respondent’s contention that the court is without jurisdiction of the appeal because the appellant failed to file a bond for costs on appeal is without

[756]

merit. The “new and alternative method” of taking appeals, provided by section 941b of the Code of Civil Procedure, enacted in 1907, dispenses with the necessity of an undertaking

(Mitchell

v.

California etc. Co.,

154 Cal. 731, [99 Pac. 202];

Estate of McPhee,

154 Cal. 385, [97 Pac. 878]). The fact that a bill of exceptions was prepared, in place of the reporter’s transcript authorized by section 953a, has no bearing upon this question. The latter section has to do with the preparation of a record on appeal. An appeal having been properly taken, in compliance with either the old or the alternative method, the record may be made up in any way permitted by the Code.

(Lang

v.

Lilley & Thurston Co.,

161 Cal. 295, [119 Pac. 100].)

It appears that the verdict on which plaintiff’s judgment is based was returned on September 7, 1905, and the time within which defendant was entitled to file and serve notice of intention to move for a new trial would, under section 659 of the Code of Civil Procedure as it then read, have expired on September 17, 1905. (Code Amendments, 1873-4, p. 315.) On the last-named day, plaintiff by written stipulation extended defendant’s time to serve and file such notice to the twenty-third day of September, 1905. There was no further extension by stipulation or by order of court. The defendant served and filed his notice of intention on the twenty-fifth day of September. On October 7th, the plaintiff moved to strike the notice from the files, whereupon defendant applied for, and on October 20th, obtained from the court an order relieving him from his default in the service and filing of said notice.