Kelly v. Ning Yung Benevolent Ass'n

I concur in the judgment denying the motion to dismiss the appeal, upon the authority of Somers v. Somers, 83 Cal. 621, and Wall v. Mines, 128 Cal. 137. If the question were an open one, my conclusion on the point would be otherwise than as held in those cases. They seem to go upon the presumption that a proposed statement on a motion for a new trial will be used, when settled, on such motion. If, however, when the appeal from the judgment comes on to be heard in this court, it then appears that the motion for a new trial had been abandoned and withdrawn, so that the statement never was, and…