Barnhart v. Fulkerth

Paterson, J. Respondents have moved to dismiss the appeal herein on the following grounds: 1. The notice of motion for a new trial was not served or filed within the time allowed by law; 2. Said notice was not signed by the attorneys of record; 3. The statement was not served or filed within the time allowed by law.

There is an apparent conflict of authority upon the subject, but we think the better rule is stated in Watson v. Sutro, 86 Cal. 500, where it is held that if the proceedings on appeal are regular, the appeal should not be dismissed upon grounds showing that the court below had no jurisdiction of the proceedings for a new trial; that such matters are proper for consideration on the hearing of the appeal. (See also Smith v. Westerfield, 88 Cal. 374.)

The motion to dismiss the appeal is denied.

Sharpstein, J., Harrison, J., McFarland, J., De Haven, J., and Garoutte, J., concurred.