Tuck

This is an appeal from a judgment entered pursuant to an order sustaining a demurrer to appellant’s first amended, complaint .without leave to amend. The complaint sought to state a cause of action for legal malpractice; the court held the cause was barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. 1.)

The respondent, an attorney, represented the appellant in an action for partnership dissolution and an accounting (Fresno County Superior Court action No. 107110). An adverse judgment was rendered on February 21, 1964. Respondent thereupon assured appellant that he would make a motion for a new trial and, if denied, he would then file a notice of appeal. Respondent failed to file a notice of motion for new trial until after the time therefor had expired under the provisions of Code of Civil Procedure section 659. Likewise, he failed to file á notice of appeal within the time limited by California Rules of Court.

After the time within which it could act expired, the trial court nonetheless denied of record the untimely motion for new trial and ordered a new judgment pursuant to Code of Civil Procedure section 662. Ndtice of appeal was filed on…