
    [S. F. No. 3375.
    In Bank.
    March 31, 1903.]
    MILTON BERNARD, Respondent, v. D. L. SLOAN et al., Appellants.
    Appeal—Failure to File Transcript—Unsettled Statement.—A motion to dismiss an appeal from a judgment for failure to file the transcript will be denied, where it appears that the appeal was taken in due time to permit a settled statement on motion for a new trial and used on the hearing of the motion, to be used on appeal from the judgment, and the record shows the pendency of such motion, and that the statement is in process of settlement.
    MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Clara County. A. L. Rhodes, Judge.
    The facts are stated in the opinion of the court.
    Joseph Hutchinson, for Appellants.
    C. D. Wright, for Respondent.
   LORIGAN, J.

Motion to dismiss the appeal upon the ground,—1. That no proper undertaking on appeal has been filed; and 2. That no transcript on appeal in the case has been filed.

Our attention has not been directed in any manner, by counsel moving to dismiss, to any defect in the undertaking.

There is an undertaking on file which appears to be regular in form, and we will not examine it critically to discover some possible defect which has not been pointed out to us.

As to the failure to file the transcript: The appeal was taken in due time, so as to permit any statement on motion for a new trial settled by the lower court, and used on the hearing of said motion, to be used on appeal from the judgment. The record shows that notice of intention to move for a new trial was duly served and filed in the lower court, and that the statement on motion therefor is in process of settlement.

These facts bring the present motion within the rule laid down in Wall v. Mines, 128 Cal. 136, and Kelly v. Ning Yung Benevolent Assn., ante, p. 602, and without further discussion, and on the authority of those cases, the motion to dismiss the appeal is denied.

Van Dyke, J., Shaw, J., Angelíotti, J., McFarland, J., Beatty, C. J., and Henshaw, J., concurred.  