Larson

This is an appeal from a judgment of nonsuit entered in an action of claim and delivery.

Plaintiff is the widow of Alfred Larson, deceased, and brought suit against the administrator of her husband’s estate to recover possession of certain personal property, consisting generally of household furniture, which she claims as her separate property.

Upon the close of plaintiff’s case defendant moved for a nonsuit, upon the ground that the evidence introduced failed to sustain the allegations of the complaint as to the separate character of the property. After due consideration this motion was on September 3, 1909, granted. Thereafter, on September 22, 1909, a judgment of nonsuit was entered in the minutes of the court, pursuant to the provisions of section 581 of the Code of Civil Procedure.

Before considering the question of the correctness of the court’s ruling on the motion for nonsuit, it is necessary to dispose of a motion made by respondent to dismiss the appeal.

The judgment was entered by the clerk on September 22d, and the appeal therefrom was taken on November 27th following. Respondent contends that as the appeal was perfected more than sixty days after the entry of the…

Respondent, in his petition for a rehearing, calls our attention to the fact that the appellant, in her notice of appeal, refers to the date of the entry of the order of nonsuit as being September 22d, respondent claiming that the record shows that such entry was in fact made on September 3d. He contends, therefore, that the appeal should not have been considered.

It is not as clear as it might be as to when the judgment of nonsuit was entered in the minutes of the court. We are inclined to think, however, that the first order was merely “a memorandum affording data from which a judgment . . . might be drafted,” and that therefore the order of September 22d was the proper one from which to take the appeal. The supreme court so held in a similar ease. (Ferris v. Baker, 127 Cal. 520 , [ 59 Pac. 937 ].)

The appeal was in time even if the order of nonsuit was entered as claimed by respondent. The error complained of, even if it existed, could not possibly have misled anyone, for the notice of appeal identified the order appealed from with reasonable certainty. That is all that is required. (Code Civ. Proc., sec. 941b.) Such errors have always been disregarded. (See Weyl v. Sonoma…