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District Court of Appeal, Second District, Division 2, California.


Civ. 10290.

Decided: September 11, 1935

Arthur F. Larrabee and C. E. McDowell, both of Los Angeles, for appellant. Reay, Scharf & Reay and Oliver O. Clark, all of Los Angeles, for respondent.

Judgment was entered in the trial court in favor of the plaintiff. The defendant gave notice of appeal, but did not prepare the record for use upon the appeal within the time prescribed by law. Thereafter, and on August 1, 1934, the court granted a motion of the plaintiff to terminate proceedings for preparation of the transcript on appeal. Thereafter and within the time prescribed by law, upon the application of defendant for relief under section 473 of the Code of Civil Procedure, the court made an order relieving the defendant from his default in failing to serve a draft of the proposed bill of exceptions within the time prescribed by law and setting aside the order of August 1st, 1934. It is from this order that the plaintiff takes this appeal.

The order is not an appealable order. Buis v. Lindauer Corp., 116 Cal. App. 558, 3 P.(2d) 18; McWilliams v. Hudson, 98 Cal. App. 185, 276 P. 598, 277 P. 529. The plaintiff may raise the question of the invalidity of the order when and if the defendant's appeal from the judgment is prosecuted.

Motion to dismiss the appeal is granted.

CRAIL, Presiding Justice.

We concur: WOOD, J.; FRICKE, Justice pro tem.

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