Huntington Park Improvement Co. v. Park Land Co.

Plaintiff appeals from the judgment and also from an order denying its motion for a new trial.

The defendant objects to the consideration of the appeal from the order on the ground that the appeal was taken too late. The order denying a new trial was made on August 29, 191L The notice of appeal was filed with the clerk sixty-four days thereafter, to wit: on November 1, 1911. This was too late under sections 939 and 940 of the Code of Civil Procedure. But it was not too late under section 941b of the Code of Civil Procedure, if it was filed within sixty days after notice of the entry of the order was served on the attorneys for the plaintiff. Where the respondent makes this objection or moves to dismiss the appeal for this cause and the notice of such entry and proof of service thereof is not set forth in the transcript on appeal, it is incumbent on him to make proof of the facts necessary to support his claim. (Foss v. Johnstone, 158 Cal. 119, 123 , [ 110 Pac. 294 ].) No such proof is offered and none is in the transcript. The respondent bases the objection upon a recital in the order appealed from. The entire order is as follows: “Motion for new trial is heard and same is…