Brooks

The plaintiff’s motion for a new trial was denied July 11, 1862, and his notice of appeal from the order denying the new trial, and from the judgment, was filed October 16, 1862; and from the record, it appears that the notice was served upon the defendant’s attorney, October 7, 1862. The defendant moves to dismiss the appeal. The service was not sufficient to constitute an appeal, accepting the dates in the record as the true dates: Buffendeau v. Edmondson, 24 Cal. 94 . But the defendant, in order to avoid the consequences that must result from a service of the notice prior to its being filed in the court below, has filed in this court several affidavits, for the purpose of proving that the service was, in fact, made on the same day the notice was filed, and that the acknowledgment of service given by the defendant’s attorney was antedated. It is unnecessary to inquire whether the affidavits do show that the service was made on the day the notice was filed, *211 for if they clearly showed such to have been the case, they could not be regarded by this court.

Causes brought to this court on appeal are heard upon a record consisting of copies of the proper portions of the record in…