Forni

This is an action of ejectment. Plaintiff had judgment, from which and from an order denying a new trial defendants appeal. Respondent objects to the appeal from the order denying a new trial, and moves to dismiss the same upon the ground that no undertaking was filed. This motion would be unanswerable under the rule laid down in Pacific Paving Co. v. Bolton, 89 Cal. 154 ; Perkins v. Cooper, 87 Cal. 244 ; Crew v. Diller, 86 Cal. 554 , and other cases of like import, but for one thing, and that is that counsel for respondent and appellants stipulated in due form as follows: “ And it is stipulated and agreed that the appellant has in due time given and filed a good and sufficient undertaking on appeal in said cause.”- Under such a stipulation we must suppose either that a good and sufficient undertaking was filed, or that the filing thereof was waived under section 940 of the Code of Civil Procedure. (Bonds v. Hickman, 29 Cal. 461 ; Carey v. Brown, 58 Cal. 185 .) The motion to dismiss for this cause should not prevail.

There is another and a fatal objection to the appeal from the order denying a new trial. It is that the notice of the motion for a new trial was not given within ten…