Duncan v. Times-Mirror Co.
Synopsis
New Tbial—Notice of Intention—Appeal—Dismissal.—A notice of intention to move for a new trial, stating that it would be based upon the records of the court and the minutes, and either a statement of the ease or bill of exceptions, is a substantial compliance with the statute, and where the motion under such notice was actually based upon a bill of exceptions, a motion to dismiss an appeal from the order denying the motion for a new trial on the ground that the notice of intention to move for a new trial was fatally defective, must be denied.
THE COURT. A motion is made to dismiss the appeal from an order denying a motion for a new trial, upon the ground that the notice of intention to move for a new trial was fatally defective. The notice recited that the motion would be made upon a statement or bill of exceptions, and upon the records of the court and upon the minutes of the court. In Hart v. Kimball, 72 Cal. 283, it was held that a motion for a new trial can be made upon a statement of the case, notwithstanding that the notice designated that the motion would be made upon a statement and [403]upon the minutes of the court and a bill of exceptions. In the present case, the motion was actually based upon a bill of exceptions. The notice of intention stated that it would be based upon the records of the court and the minutes, and either a statement or bill of exceptions. We think the notice is a substantial compliance with the statute.
Motion denied.
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