Gumpel

Judgment went in the trial court for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.

Respondent objects to the consideration of the points made by appellants on their appeal from the order denying the motion for a new trial, and moves to "dismiss said appeal, upon the ground that the notice of motion for a new trial was not given in time. The motion to dismiss, in such case, has been held not to be proper practice; but the objection to the notice of motion is a proper matter for consideration on the hearing of the appeal. (Barnhart v. Fulkerth, 92 Cal. 1 5 .) As was said in Quivey v. Gambert, 32 Cal. 309 : “If the notice and statement, or either of them, is not filed in time, he [respondent] may safely rely upon such facts as fatal to the motion when brought to a hearing.” Where the notice of motion has not been filed in time, and respondent presents his objection to it at the proper time and in the proper manner, an order denying the new trial will be affirmed here without looking further into the record.

Appellants contend that in the case at bar respondent did not properly present and preserve her objection to the notice; but we…