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District Court of Appeal, Fourth District, California.


Civ. 1651.

Decided: February 16, 1937

William Ellis Lady, of Los Angeles, for appellant. Albert Ford, of Riverside, for respondent.

In his petition for rehearing defendant urges one ground not presented in his briefs on appeal. He now calls our attention to the fact that no notice of the motion for judgment on the pleadings was given by plaintiff. While this is true, the motion was actually made in open court and was argued and submitted without objection being made by defendant. This constituted a waiver of the failure to give notice. In Hammond Lumber Co. v. Blood–good, 101 Cal.App. 561, 281 P. 1101, it was said: “It is the well–settled law of this state that, where both parties appear and contest a motion, without objection in the trial court, such appearance is a waiver of a written notice, if none were given, or of the defect in the notice to specify all of the relief asked and given, if the motion and order went beyond the terms of the notice. Acock v. Halsey et al., 90 Cal. 215, 27 P. 193; Curtin v. Dunne, 10 Cal.App. 586, 102 P.825; Walberg v. Underwood, 39 Cal.App. 748, 180 P. 55; Brown v. Superior Court, 65 Cal.App. 147, 223 P. 426.”

The petition for rehearing is denied.

MARKS, Justice.

I concur: BARNARD, P. J. JENNINGS, J., being absent, does not participate herein.

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