Rayner

— The complaint filed in this action is in this language: —

The bond mentioned therein is as follows: —

A demurrer was interposed to the complaint, and overruled; a motion for a nonsuit was made, and denied; the cause was then tried, and resulted in a judgment for ...¿the plaintiffs in the sum of thirteen hundred and fifty dollars, and costs.

A notice of motion for a new trial was served and filed in due season, and upon the hearing of the motion the trial court dismissed it, upon the theory, evidently, that as the judgment made and entered had been appealed from when the motion for a new trial came on for hearing, the court below had lost jurisdiction to determine it.

This view of the matter is untenable, and the court should have heard the motion, and either granted or denied it, upon the bill of exceptions presented, which is a part of the record here on the appeal from the order of dismissal, the action of the court being, in legal effect, a denial of the motion for a new trial. (Code Civ. Proc., sec. 946; Naglee v. Spencer, 60 Cal. 10 ; 1 Hayne on New Trial and Appeal, p. 26, sec. 2; p. 494, sec. 166; Carpentier v. Williamson, 25 Cal. 167, 168 ; Chase v. Evoy, 58 Cal. 352…