Majority
p. 402[L. A. No. 412. In Bank. March 25, 1898.] BLANTON DUNCAN, Appellant, v. TIMES-MIRROR COMPANY, Respondent.
Headnote
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.MOTION to dismiss an appeal from an order of the Superior Court of Los Angeles County denying a new trial. Luden Shaw, Judge.
The facts are stated in the opinion of the court.
Blanton Duncan, in pro. per., and D. Allen, for Appellant.
Henry T. Gage, and White & Monroe, for Respondent.
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
p. 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.
Cases cited
- Hart v. Kimball 72 Cal. 283 p. 402