Duncan v. Times-Mirror Co.

THE COURT. A motion is made to dismiss the appeal from an order denying a motion for a new trial, upon the ground that the notice of intention to move for a new trial was fatally defective. The notice recited that the motion would be made upon a statement or bill of exceptions, and upon the records of the court and upon the minutes of the court. In Hart v. Kimball, 72 Cal. 283, it was held that a motion for a new trial can be made upon a statement of the case, notwithstanding that the notice designated that the motion would be made upon a statement and [403] upon the minutes of the court and a bill of exceptions. In the present case, the motion was actually based upon a bill of exceptions. The notice of intention stated that it would be based upon the records of the court and the minutes, and either a statement or bill of exceptions. We think the notice is a substantial compliance with the statute. Motion denied.