Majority
p. 72[S. F. No. 1343. In Bank. September 2, 1898.] J. F. COONAN, Respondent, v. J. LOEWENTHAL, Appellant.
Headnote
Appeal—Dismissal—1Time of Filing Undertaking—Conflicting Affidavits.—A motion to dismiss an appeal on the ground that the undertaking on appeal was filed before the notice of appeal was served will not be granted where the time of the service of the notice does not appear from the record, and upon the question of its service before or after the filing of the undertaking, ■ the affidavits of various parties who were acquainted with the facts squarely contradict each other.MOTIOU to dismiss an appeal from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. E. W. Wilson, Judge.
• The facts are stated in the opinion of the court.
Chamberlain & Wheeler, for Appellant.
S. M. Buck, and J. F. Coonan, for Respondent.
Respondent moves to dismiss the appeal upon the ground that the undertaking on appeal was filed before the notice of appeal was served. The notice of appeal shows by indorsement that it was served, but the particular day upon which it was served does not appear thereon. The material question is, was this notice.of appeal served upon the twenty-seventh day of January, or upon the following day? Upon this question the affidavits of various parties wbo were acquainted with the fact are before the court. Those affidavits squarely contradict each other, and under such circumstances we will not order the appeal dismissed.
The motion to dismiss is denied.