S. F. No. 1343 | Cal. | Sep 2, 1898
Respondent moves to dismiss the appeal upon the ground that the undertaking on appeal was filed before the notice of appeal was served. The notice of appeal shows by indorsement that it was served, but the particular day upon which it was served does not appear thereon. The material question is, was this notice.of appeal served upon the twenty-seventh day of January, or upon the following day? Upon this question the affidavits of various parties wbo were acquainted with the fact are before the court. Those affidavits squarely contradict each other, and under such circumstances we will not order the appeal dismissed.
The motion to dismiss is denied.