Grimes

In this action judgment against the defendants was entered on the thirteenth day of September, 1921. On the ninth day of that month the plaintiff gave notice to the defendants that judgment had been entered on the sixth day of September, 1921. On the twenty-third day of November, 1921, the defendants served upon the plaintiff and on the twenty-sixth day of that month filed a notice of intention to move for a new trial. On the third day of December, 1921, the plaintiff moved for dismissal of the motion for a new trial on the ground that the notice of intention to move for a new trial was not given within the time allowed by law. This motion was granted. On December 13, 1921, the defendants gave notice of appeal from the judgment and from the order granting plaintiff’s motion to dismiss the motion for a new trial.

The notice of entry of judgment was premature and ineffectual for any purpose, since there could be no valid notice of the existence of something which did not in fact exist. (North American Co. v. Outer Harbor Co., 178 Cal. 406 [ 173 Pac. 756 ].) Therefore the notice of intention to move for a new trial was not too late. And at the time when the order of dismissal was…