Dore v. Dougherty

McKEE, J. The respondent moves to dismiss the appeal taken from the order denying a motion for a new trial in this case, principally upon the ground that the transcript shows on its face that the proposed statement on the motion was not served upon one of the “adverse parties,” as required by subdivision 3, section 659, Code of Civil Procedure.

[403]It is conceded that the proposed statement was served on all the parties except one, viz., the defendant Hallidie. Upon him it was not served; but the court, as to the parties upon whom it was served, settled and allowed the same, certified to its correctness, and upon it, as certified, the motion for a new trial was submitted and denied. It may be that the court denied the motion because the proposed statement had not been served upon all the parties. If that were so, or if it were not so, it is not cause for a dismissal of the appeal. An appeal is dismissible for some irregularities in taking it, or for failure to prosecute it, or for want of appearance, or for consent of parties; but where it has been perfected according to law, and the appellant appears, he is entitled to be heard upon any question or fact involved in the merits.

Motion denied.

We concur: Ross, J.; McKinstry, J.