Havens v. Dale

SHAi TER, J. This is an appeal from a judgment in ejectmen and from an order denying a motion made by appellant for a new trial.

There ;s no statement on appeal, and it is not claimed that there is my error in the judgment-roll. The statement on motion f >r new trial contains no specification of grounds as required by the act of 1861, under which the motion and statemen; in support of it were made: Barrett v. Tewksbury, 15 Cal. 54.

It is n-1 necessary that a respondent should move to dismiss under tl, 3 thirteenth rule of the court, in a case where there is no sta ement which we are at liberty to notice. Where the objeetior is one “affecting the right of the appellant to be heard oi : the points of error assigned, ’ ’ a motion to dismiss must be made at the first term after the filing of the transcript; >ut in this case, no errors having been assigned, the defect in the proceedings is one to which the rule has no applVation. The difficulty is that the appellant has no “case” here on appeal: 15 Cal. 354.

Judgment affirmed.

We concur: Sanderson, C. J.; Sawyer, J.; Currey, J.; Rhodes, J.