Linn

In this action, defendant, a physician, appeals from a judgment in favor of plaintiff, Anna Linn, in an action for his alleged malpractice. His main point on this appeal is that there was no showing of negligence on his part sufficient to warrant sending the case to the jury, and that, therefore, -either his motion for nonsuit or his motion for a directed verdict should have been granted.

Respondents contend that this point cannot be - considered because the appeal was taken more than sixty days after the entry of the judgment. The case is one where the statute abolishing the appeal from orders denying a new trial went into effect while the motion for new trial was pending and undecided, and under the decision of this court in Nathan v. Porter, 36 Cal. App. 356 , [ 172 Pac. 170 ], it is proper on the appeal from the judgment to review the action of the lower court on the motion for new trial, and to use the bill of exceptions for that purpose. The action of the court in denying the motions for nonsuit and for directed verdict is, therefore, reviewable on this appeal. Respondents’ further claim that the appeal should be dismissed because the undertaking* on appeal was filed more…