Aspegren Co., Inc. v. Sherman, Swan Co.

This is a motion to dismiss the appeal herein. The action was instituted by the plaintiff corporation to restrain the defendant company from retailing certain goods of the former below a specified price. Judgment was entered denying the injunctive relief prayed for and awarding costs to the defendant company. Plaintiff appealed.

Respondent’s motion to dismiss is founded upon the claim that the purported appeal was not taken within the time prescribed in section 939 of the Code of Civil Procedure. The motion is supported by a certificate of the county clerk of the county of Alameda wherein it appears that on January 11, 1926, the superior court of said county, upon the conclusion of the trial, pronounced that the relief sought was denied; that on January 21, 1926, a notice of appeal was filed by plaintiff; that findings of fact and conclusions of law were signed and filed by said court on February 8, 1926; that judgment was entered in accordance with the findings of fact and conclusions of law on February 8, 1926, and that on said last-mentioned date a transcript, prepared under section 953a, Code of Civil Precedure, was settled and filed.

Section 939 of the Code of Civil…