Opinion
Docket No. Sac. 4710.
May 31, 1932.
MOTION to dismiss an appeal from a judgment of the Superior Court of Shasta County. Walter E. Herzinger, Judge. Motion denied.
The facts are stated in the opinion of the court.
William B. Bosley, Thomas J. Straub, Athearn, Chandler Farmer, Frank R. Devlin and Chenoweth Leininger for Appellant.
Jesse W. Carter, Arthur C. Huston and Annette Abbott Adams for Respondent.
THE COURT.
This is a motion to dismiss an appeal from a judgment for the plaintiff in an action brought in the respondent court for an injunction and damages by reason of an alleged wrongful diversion of water by the defendant. [1] The motion is made on the ground that no record on appeal has been prepared, certified or filed in this court within the time prescribed by law. This matter was heard and submitted at the same time as the application for a writ of mandate to compel the trial judge to settle a bill of exceptions proposed by the appellant. The mandamus proceeding is entitled Mt. Shasta Power Corp. v. Superior Court, (S.F. No. 14567) post, p. 772 [ 12 P.2d 10], and the peremptory writ has this day been ordered. The time for filing the record on appeal herein will not commence to run until said bill of exceptions is settled by the trial judge. The motion to dismiss the appeal is therefore denied.