Hartfield

A motion to dismiss the appeal in this case was denied by order of this court entered November 11, 1914, 25 Cal. App. 732 , [ 145 Pac. 146 ]. Respondent now further insists that the appeal should have been dismissed and that this court has no jurisdiction other than to enter a dismissal.

The order of November 11, 1914, being now final, is the law of the case on the points involved in the motion. The motion to dismiss was based upon the ground that notice of appeal and request for a transcript was not filed within ten days after notice to the defendant of the entry of the judgment. We think that the order denying said motion to dismiss was correctly made, since there was nothing in the record showing that the defendant ever had notice of entry of judgment, or ever waived notice of entry of judgment by any act done by him prior to filing his notice of appeal. The document upon which respondent relied as showing actual notice was a paper not capable of being considered as part of the record, and the filing of that paper did not constitute a waiver of the notice of entry of judgment referred to in section 953a of the Code of Civil Procedure.

While the order denying the motion to…