Oliver

This is an appeal from the judgment in an action based on a written contract.

Preliminarily plaintiff insists that the transcript was not filed within the time prescribed by law, and that therefore there is no bill of exceptions or statement of the case that can be considered on this appeal.

Through an inadvertence the defendant failed to serve his notice of intention to move for a new trial (according to the claim of plaintiff) within the time limited therefor. Thereafter the trial court, upon notice and motion, made an order relieving the defendant from the consequences of his omis sion. From that order the plaintiff took an appeal to the supreme court, and that court reversed the same, holding that a motion for a new trial was collateral to the original action and in the nature of a new and independent proceeding to which the provisions of section 473 of the Code of Civil Procedure, were inapplicable (Union Collection Co. v. Oliver, 162 Cal. 755 , [ 124 Pac. 435 ].) Long prior to the reversal of said order and within sixty days after the judgment was made and entered, defendant served and filed notice of appeal therefrom, and on the same day also served his proposed bill of…