McDowell

Presenting their petition for a rehearing, appellants challenge the.statement made in the opinion filed by this court that all of the grounds of appeal presented by them depend upon the contents of the reporter’s transcript. They insist that there are errors on the face of the judgment-roll, which are mentioned on pages 31 to 34 of their brief, which they say that we have overlooked. It is true that they were overlooked, but by a very excusable inadvertence. Under the general heading “Points of Law,” the brief contains a long list of such points, most of them not accompanied by any attempt to apply them to the ease at bar. The items now designated by petitioners were buried in the mass of print, like needles in a haystack.

Now, considering the points on their merits: ' [3] Appellants claim that the complaint in intervention did not state a cause of action because it shows on its face that it is barred. This defense was not made either by demurrer or answer. Unless such defense is in some manner asserted in the trial court, it is waived. (Bliss v. Sneath, 119 Cal. 526 , [ 51 Pac. 848 ].) Counsel for appellants assert that such defense was made in their answer to the complaint in…

this action judgment in favor of the respondents was entered on December 3, 1915.. On the twenty-fourth day of January, 1916, plaintiffs filed notice of appeal from the judgment. The clerk’s transcript on appeal was filed on June 27, 1919, and it appears therein that on April 11, 1919, the plaintiffs by their attorney filed with the clerk of the superior court a notice requesting that a transcript of the testimony, etc., at the trial be made up and prepared. No bond to secure the reporter’s fees for the transcript was filed, but the notice stated that the plaintiffs “havd made arrangements with the court reporter to pay for the cost of the same.” The reporter’s transcript, containing 218 pages, was certified by the reporter and on the eleventh day of October, 1919, the truth and correctness thereof was certified by the judge who tried the case. This transcript was filed on the twenty-third day of October, 1919. The appellants’ opening brief was filed on the twenty-sixth day of August, 1919. All of the grounds of appeal presented therein depend upon contents of the reporter’s transcript. It thus appears that at the time of the filing of appellants’ brief and during the entire time…

In this action judgment in favor of the respondents was entered on December 3, 1915. On the twenty-fourth day of January, 1916, plaintiffs filed notice of appeal from the judgment. The clerk's transcript on appeal was filed on June 27, 1919, and it appears therein that on April 11, 1919, the plaintiffs by their attorney filed with the clerk of the superior court a notice requesting that a transcript of the testimony, etc., at the trial be made up and prepared. No bond to secure the reporter's fees for the transcript was filed, but the notice stated that the plaintiffs "have made arrangements with the court reporter to pay for the cost of the same." The reporter's transcript, containing 218 pages, was certified by the reporter and on the eleventh day of October, 1919, the truth and correctness thereof was certified by the judge who tried the case. This transcript was filed on the twenty-third day of October, 1919. The appellants' opening brief was filed on the twenty-sixth day of August, 1919. All of the grounds of appeal presented therein depend upon contents of the reporter's transcript. It thus appears that at the time of the filing of appellants' brief and during the entire…