Menges

This is a motion by two defendants to dismiss plaintiff’s appeal from the judgment. Two contentions are urged in support of the motion. The first of these contentions is that the plaintiff in whose favor the judgment was rendered has, subsequent to the institution of the appeal, taken affirmative action upon the judgment from which the appeal is prosecuted, thereby recognizing the validity of the judgment and consequently waiving his right to appeal. The second contention is that plaintiff’s opening brief is fatally defective in that it fails to set forth on the first page thereof a statement of the question involved as required by section 2, Rule VIII of the Rules for the Supreme Court and District Courts of Appeal.

It appears from the record herein that the plaintiff instituted this action in the Superior Court of Orange County to recover from the defendants the sum of $5,000, together with interest and costs on a promissory note for the aforesaid amount alleged to have been executed by the defendants in favor of a third person who was alleged to have transferred the note to plaintiff prior to maturity for a valuable consideration. Defendants Bosch and Mott filed answers to…