Ashworth

Respondent has moved to dismiss the appeal herein, and to strike from the files the transcript on appeal.

In preparing his notice of appeal counsel for the appellant entitled the cause Emma Butler v. Thomas Ashworth et al., and it is claimed that this invalidates the appeal.

An affidavit has been filed in which counsel for appellant states that the mistake was caused by the fact that when he was employed in the case he placed his private papers for use therein in an envelope, and indorsed the same with the title of the action, but in doing so through inadvertence and mistake wrote the plaintiff’s name therein as Emma Butler, and in preparing the notice of appeal and other papers in which the mistake as to plaintiff’s name occurred, he wrote the same from the title of the cause as the same appeared upon said envelope, and never discovered the mistake until he was preparing the transcript to be used on appeal herein.

Section 1046 of the Code of Civil Procedure provides that “an affidavit, notice, or other paper, without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it…