Ackerman

Cleveland Schultz sought to appeal from a judgment against him on the cross-complaint of Bert. T. Dem-mitt, and from an order denying his motion for a new trial.

Respondent says that the appeal from the judgment was taken too late. Judgment was entered January 27, 1914. Appeal therefrom was dated, served, and filed January 20, 1915. Under section 939 of the Code of Civil Procedure, before its amendment in 1915, this was too late, as the pend-ency of the proceedings on motion for new trial did not extend the time for appeal from the judgment.

We are, therefore, limited to a consideration of the appeal from the order denying the motion of appellant for a new trial, and that, too, upon a record which does not contain a copy of the original complaint of Ackerman. The judgment and findings upon the cross-complaint, however, refer to Ackerman’s suit as one on claim and delivery, and appellant insists that there may be no cross-complaint in such an action. To support this contention certain authorities from other states are cited which refer to counterclaims and not to cross-complaints. One Californian case is referred to, and in the opinion in that case (Lovensohn v. Ward, 45 Cal. 8 )…