
    [Sac. No. 3561.
    In Bank.
    February 25, 1924.]
    NORTH CONFIDENCE MINING AND DEVELOPMENT COMPANY (a Corporation), Respondent, v. C. S. FITCH et al., Appellants.
    Appeal — Motion to Dismiss — Service of Notice of Appeal.— Where a motion to dismiss an appeal is made upon the ground that the notice of appeal was filed too late, the question depending upon whether there was a motion pending for a new trial, it being claimed that the notice of intention to move for a new trial was not properly served and filed, but since the hearing of the motion affidavits having been filed showing that the notice of intention was properly served by mail and the notice of appeal filed within due time after disposition of the motion for new trial, the motion to dismiss the appeal will be denied.
    MOTION to dismiss appeal from a judgment of the Superior Court of Tuolumne County. J. A. Smith, Judge.
    Denied.
    The facts are stated in the opinion of the court.
    Frank W. Street and Horace M. Street for Respondent.
   THE COURT.

The respondents moved to dismiss the appeal from the judgment taken by the appellants upon the ground that the notice of appeal - was filed too late. This question turns upon whether or not there was a motion pending for a new trial. Appellants claim that the notice of intention to move for a new trial was not properly served and filed. Since the hearing of the motion affidavits have been filed showing that the notice of intention to move for a new trial was properly served by mail. The notice of appeal from the judgment was filed within due time after the disposition of the motion for a new trial and the motion to dismiss the appeal from the judgment is, therefore, denied.  