Opinion
Sac. No. 3561.
February 25, 1924.
MOTION to dismiss appeal from a judgment of the Superior Court of Tuolumne County. J.A. Smith, Judge. Denied.
The facts are stated in the opinion of the court.
Frank W. Street and Horace M. Street for Respondent.
The respondents moved to dismiss the appeal from the judgment taken by the appellants upon the ground that the notice of appeal was filed too late. This question turns upon whether or not there was a motion pending for a new trial. Appellants claim that the notice of intention to move for a new trial was not properly served and filed. Since the hearing of the motion affidavits have been filed showing that the notice of intention to move for a new trial was properly served by mail. The notice of appeal from the judgment was filed within due time after the disposition of the motion for a new trial and the motion to dismiss the appeal from the judgment is, therefore, denied.