Koesheyan

This is an appeal from an order denying a motion for a new trial in an action for damages for eviction from certain premises in Fresno. The verdict in favor of the plaintiffs was rendered February 27, 1913, and judgment was rendered and entered on the same day. On March 4, 1913, the defendant applied to the court for, and was granted, a stay of execution. On March 8 defendant served a notice of motion to strike out the plaintiffs’ cost-bill “upon the papers, pleadings and records in the cause.’’ This motion was heard in open court and decided on March 17, 1913. On March 28, 1913, defendant gave notice of intention to move for a new trial. Plaintiff moved to dismiss said motion and at all times objected and now objects to the hearing of the same by the trial court or upon this appeal upon the ground that the notice of intention was not given in time, relying upon Gardner v. Stare, 135 Cal. 118 , [ 67 Pac. 5 ], and cases cited. We think it does not necessarily appear from this record that the defendant had such notice of th entry of the judgment as would satisfy the statute. This being so, we are disposed to hear and determine the case upon its merits.

The plaintiff, Mary J. Clark,…