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Barnhart v. Fulkerth

92 Cal. 155 Court Cal. Decision date 1891-12-02 Docket No. 14603 English

Delivered by Paterson, J.

Contents

Majority

p. 155
[No. 14603.
In Bank.
December 2, 1891.]
H. BARNHART, Appellant, v. A. S. FULKERTH et al., Respondents.

Headnote

Appeal—Dismissal—Jurisdiction op Trial Court — Proceedings por New Trial.— Where the proceedings on appeal are regular, the appeal will not be dismissed upon grounds showing that the trial court had no jurisdiction of the proceedings for a new trial, by reason of failure to serve and file the notice of motion or statement within proper time; but such matters are proper to be considered on the hearing of the appeal.
Motion to dismiss an appeal from an order of the Superior Court of Stanislaus County denying a new trial. The facts are stated in the opinion of the court.
P. J. Eazen, for Appellant.
William E. Turner, and Charles J. Eeggerty, for Respondents.

Respondents have moved to dismiss the appeal herein on the following grounds: 1. The notice of motion for a new trial was not served or filed within the time allowed by law; 2. Said notice was not signed by the attorneys of record; 3. The statement was not served or filed within the time allowed by law.

There is an apparent conflict of authority upon the subject, but we think the better rule is stated in Watson v. Sutro, 86 Cal. 500 , where it is held that if the proceedings on appeal are regular, the appeal should not be dismissed upon grounds showing that the court below had no jurisdiction of the proceedings for a new trial; that such matters are proper for consideration on the hearing of the appeal. (See also Smith v. Westerfield, 88 Cal. 374 .)

The motion to dismiss the appeal is denied.

Sharpstein, J., Harrison, J., McFarland, J., De Haven, J., and Garoutte, J., concurred.

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