Schlitz

Action to quiet title. Findings and judgment were in favor of defendant. Plaintiff moved for a new trial, which was granted, and defendant appeals from the order.

Defendant urges that there was. no proper hill of exceptions before the trial court on which to base a motion for a new trial, for the reason that the notice of intention was not filed in time. The notice of decision was served on plaintiff’s counsel April 17, 1905. Notice of intention to move for a new trial was likewise served on April 24, 1905, but it is claimed by defendant that it was not filed with the clerk until May 27,1905. There is evidence tending to show that counsel for plaintiff handed the notice of intention to the clerk, with other papers, on April 24th, but for some reason not clearly explained the clerk failed on that day to indorse the paper as filed. Later, on May 27th, his attention was called to the omission, and on this latter day he indorsed the paper: “Filed April 24th, 1905. T. B. Clark, Clerk.” The testimony of the clerk and of plaintiff’s counsel was taken on the point, and we think there was sufficient to justify the conclusion of the trial court that the notice was in fact left with the…