Forni v. Yoell

Citations

• 99 Cal. 173
• 33 P. 887
• 1893 Cal. LEXIS 632

Syllabus

<p>Appeal—Undebtakinb—Stipulation—Waives—Dismissal.—Where the parties to the record upon appeal stipulate and agree “ that the appellant has in dne time given and filed a good and sufficient undertaking on appeal,” it must he supposed by the appellate court either that such undertaking was filed or that the filing thereof was waived, and a motion to dismiss the cause for want of an undertaking upon appeal should not prevail upon that ground.</p> <p>In. — New-tbial Obdeb—Time fob Notice of Intention—Notice of Decision_ Waives—Notice of Motion to Dismiss Action. — Where the record upon appeal from an order denying defendants’ motion for a new trial shows that notice of their intention to move for a new trial was not filed within ten days after service by them of notice of their motion to dismiss the action, upon the ground of the failure of the plaintiff to enter judgment within six months after the filing of the findings and decision, the date of which is stated in the notice, they must be held to have thereby waived the written notice of the decision as of that date, and there being no extension of time, their notice of intention to move for a new trial came too late, and the order denying the new trial must be affiimed.</p> <p>Id.—New-tbial Statement—Use on Appeal fbom Judgment.—Where an appeal from the j udgment was not taken within sixty days after its rendition, exceptions to the sufficiency of the evidence to support the decision contained in a statement used on motion for a new trial cannot be considered or reviewed upon the appeal from the judgment.</p>