Sibeck

This is an appeal by the defendant from the judgment and from an order denying his motion for a new trial.

Eespondent claims that the appeal from the order denying a new trial should be denied for want of a sufficient record. The transcript contains a document purporting to be a statement on motion for new trial. It is recited therein that within ten days after entry of judgment the defendant ‘1 duly served on plaintiff” his notice of intention to move for a new trial. It is not stated anywhere in the record that such notice ever was filed, and it is pointed out that merely serving such a notice on the adverse party is not sufficient. (Code Civ. Proc., sec. 659.) It may be observed further that the record does not show on what grounds the motion was presented. It does appear, however, that the court ruled on the motion as upon the merits, and this being so we are obliged to assume (in the absence of anything definitely appearing to the contrary) that the notice of intention was filed and that the errors assigned in the statement constituted the grounds of the motion as presented. In Cross v. Mayo, 167 Cal. 594, 598 , [ 140 Pac. 283 ], the supreme court said: “While on an appeal…