Melde

Motion to dismiss the appeals. Judgment in this action was rendered in favor of the plaintiff, and against the defendant, April 26, 1897. June 1st the defendant gave notice of intention to move for a new trial, upon the ground of “accident and surprise which ordinary prudence could not have guarded against." November 4th the court made an order denying the defendant’s motion for a new trial. November 6th the defendant appealed from the judgment and order denying a new trial. Plaintiff now moves to dismiss the appeal from the judgment, upon the ground that it was not taken within six months from its entry, and also to dismiss the appeal from the order denying a new trial, upon the ground that the record contains no *236 bill of exceptions setting forth the papers or other matters upon which the motion was heard.

1. Section 939 of the Code of Civil Procedure, as amended in 1897 (Stats. 1897, p. 55), did not take effect until after the entry of the judgment herein, and the time within which an appeal could be taken is governed by the statute in force at the entry of the judgment. (Pignaz v. Burnett, 119 Cal. 157 .)

2. Section 661 of the Code of Civil Procedure declares: “'The…