*1 offered, ap- evidence taken inferences, with all favorable pellant damages failed to show cause for respondents.
The nonsuits proper the other defendants were for the additional reason that the evidence demonstrated that they merely purchased some assets Acme without assuming the liabilities. affirmed.
Sturtevant, J., Spence, J., Appellate District, July No. 10348. Second Division One. al., Respondents, RUFUS T. WINCHESTER et v. GEN (a Corporation) COMPANY al., ERAL CAB et De fendants; COMPANY, MERCER CASUALTY Appel lant. *2 Dodge Appellant. Don Francis Hensley E. and
Elbert Gallagher Respondents. B. Lasher presented their motion CONREY, Respondents have P. J. Company’s appeal Casualty defendant Mercer to dismiss ground upon the judgment, make their from the and sixty until than filed more the notice entry be the This must days after pen extended reason of the time had been granted unless (Code new trial. Civ. proceedings on motion dency of 939.) Proc., sec. any in notice of intention to only this case record reporter’s in found the tran- new trial is a notice
move for a General Cab intention of the defendant script, page Eight such months before Company make motion. to been entered defend- ease, default had the only Company. The contested issues at the Cab ant General pleadings plaintiffs between the those raised trial were Casualty Company. The Mercer and defendant in served and the of Mercer record mentioned Company the above notice of Cab General name of opposi- trial. of his move for a new intention to attorney has filed herein appeal said dismissal of the to tion the was affidavit, in substance is to effect he which his attorney and that not the for new trial was mistake of intention to move wrong defendant, name of the written- secretary and further signed his own himby mistake was discovery of the error.
Appellant authorizing now for an asks order with instructing drawal the reporter’s transcript, and the trial to transcript by striking said amend therefrom the Company” words “General Cab substituting therefor Casualty words “Mercer Company”, copy of said transcript. intention as now contained said If Casualty Mercer Company any was entitled to such relief application superior therefor should have been made to the court, might the corrected record then be certified to this opinion, court. are of however, We in face admitted fact that the record does not show and cannot truly be made to show that notice of intention of Mercer trial, Company to move was ever served or company name of description or under it included, which could be conclusion must follow that proceeding there no on motion for was and that the give was filed too late to jurisdiction In People thereof this court. Lewis, v. *3 410, (2d) 73], Supreme 414 Pac. Cal. Court [27 said: filing appeal notice by “The execution and of of is done a attorney, party or his and is not an act court. Where through party inadvertence or of a or mistake by law, is not within time notice limited neither the nor, appellate court can afford relief trial court thereafter filing tardy permitting by notice. What the trial court directly accomplish indirectly by do it cannot cannot authoriz ing timely amendment or alteration a codefendant’s writing by appeal the name of the defendant who failed apply equal to file notice time.” These observations with initiating of time for proceedings force to limitations on for and to the limitations for giving motion time appeal. respondents, granted motion of is and the The from is dismissed. Houser, J., York, J., petition rehearing
A for a this cause was by denied Appeal August 6, 1935, Court of on District and the follow- ing opinion then rendered thereon: THE On petition COURT. of defendant Mercer rehearing Company for after order of dismissal of petitioner’s In addition to statement reasons offered petition, requested opinion of this it is that the heretofore be amended to “set forth the fact appellant’s motion for a new trial in the court below was actually argued by appellant, by counsel opposed for counsel respondent, taken and the trial court as understood appellant’s motion and not motion of the considered, as submission, such heard and after motion for by appellant, and, finally, as a a new trial denied, objection trial court all whatever re- spondent any insufficiency appellant’s based on or defect in intention may move for a new trial”. It be as- foregoing quotation justified by sumed that the is record, except of notice of intention of defend- absence ant Mercer to move for newa trial there thing “appellant’s could be no such a new opinion trial”. It is for this reason that we are appellant in this case a [lending at time. petition rehearing denied. petition by appellant to have cause heard in the
A. Supreme Court, after Ap- the District Court of peal, September Supreme was denied on Court 1935. Appellate July 10, No. 1379. Fourth District. BURNETT, the Matter of Estate W. I. Deceased.