Majority
p. 180[Sac. No. 722. Department One. March 24, 1900.] SUTTER COUNTY, Respondent, v. J. B. TISDALE et al., Appellants.
Headnote
Appeal—Limitation of Time—Dismissal.—An appeal from a judgment . not taken within the time allowed by law therefor must be dismissed.Id.—Order Denying New Trial—Service of Notice—Motion to Dismiss Appeal—Proof of Service.—At the hearing of a motion to dismiss an appeal from an order denying a new trial for want of proof of service of the notice of appeal, the fact of such service, which gives this court jurisdiction to entertain the appeal, may he proved by affidavits not incorporated in the transcript,
Id.—Insufficient Ground of Dismissal—Want of Service of Notice of Intention.—The want' of service of the notice of intention to move for a new trial is not a ground for dismissing an appeal from the order.
MOTION to dismiss appeals from a judgment of the Superior Court of Sutter County and from an order denying a new trial. E. A. Davis, Judge.
The facts are stated in the opinion of the court.
Forbes & Dinsmore, for Appellants.
A. C. McLaughlin, M. E. Sanborn, and Lawrence Schillig,. for Respondent.
The respondent’s motion to dismiss the appeal from the judgment upon the ground that it was not taken within the time allowed by law must he granted. The judgment appealed from was entered October 22, 1898, and the notice of appeal was not given until June 28, 1899. The respondent has also moved to dismiss the appeal from the order denying a new trial, upon the grounds that no notice of the intention to move therefor was served on certain of the codefendants, and also -that the notice of appeal was not served upon said codefendants, and that the' transcript fails to contain any evidence of such service. At the hearing of the motion the
p. 181
appellants produced and filed affidavits showing that the notice ■of intention to move for a new trial, as well as the notice of appeal, had been served upon each of said codefendants. The fact of such service, rather than the evidence thereof, gives this ■court jtirisdiction to entertain the appeal, and such evidence may be shown in other modes than by being incorporated in the transcript. (Heinlen v. Heilbron, 94 Cal. 636 ; Knowlton v. MacKenzie, 110 Cal. 190 .) The want of service of notice of intention to move for a new trial is not a ground for dismissing the appeal from the order. (In re Ryer, 110 Cal. 556 .)
The appeal from the judgment is dismissed. The motion to ■dismiss the appeal from the order is denied.
Cases cited
- Heinlen v. Heilbron 94 Cal. 636 p. 181
- Ryer v. Ryer 110 Cal. 556 p. 181