Randall

Motion to dismiss the appeal herein on the following grounds:

' When this case was last here on appeal ( 101 Cal. 82 ) the judgment of the court below was “ affirmed in all respects except as to the matter of interest, as to which the judgment was reversed and the cause remanded to the superior court, with direction to amend its decree by allowing interest to the plaintiff down to March 1, 1892, and by reducing the judgment against him correspondingly.”

The present appeal is taken from the order of the court below modifying the judgment as to the matter of interest and from the judgment as modified.

It may be true, as claimed, that the order and judgment appealed from were made and amended, as directed by this court, and that the appeal is frivolous and vexatious, and was taken merely for the purpose of delay; but that is a matter which can only be determined by an examination of the record on appeal, and this we have held will not be done on a motion to dismiss an appeal.

In People v. McNulty, 95 Cal. 595 , it was held that to dismiss an appeal “ upon the ground that it is frivolous is to refuse to consider its merits, and, therefore, there can be no dismissal of an appeal on…