Reid v. Kowalsky — 6 Cal. Unrep. 823

Majority

p. 823

REID v. KOWALSKY.

S. F. No. 2771;

November 27, 1901.

66 Pac. 851.

Headnote

Appeal—Settlement of Bill of Exceptions.—Where the only defense to a motion to dismiss an appeal is that the trial court has refused to settle a bill of exceptions, and that mandamus is pending in the appellate court to compel such settlement, on refusal of the writ of mandamus the appeal will be dismissed.

APPEAL from Superior Court, City and County of San Francisco; Prank H. Kerrigan, Judge.

Action by J. P. Reid against Henry I. Kowalsky. Prom a judgment for plaintiff defendant appeals. Dismissed.

A. A. Sanderson for appellant; J. S. Reid for respondent.

Motion of respondent to dismiss appellant’s appeal from an order of the court below dismissing his

p. 824

proceedings for a new trial. The only answer to the motion is that the judge of the lower court had refused to settle a bill of exceptions on said motion-, and that a proceeding in mandamus was pending in this court to compel the settlement of said bill. Judgment, however, was this day rendered in said mandamus proceeding denying the writ. Such judgment disposes of the only defense to the present motion: See Kowalsky v. Kerrigan, 134 Cal. 590 , 66 Pac. 850 .

The motion is granted and the appeal is dismissed.

Cases cited

Kowalsky v. Kerrigan 134 Cal. 590 Cal. 1901-11-27 p. 824