It appears by the certificate of the Clerk of the Court below, filed here in support of the motion to dismiss the appeal, that the notice of appeal was filed on the 28th day of April, 1874, but was not served on the respondent’s attorney until the 1st day of May, 1874.

*568In Columbet v. Pacheco (46 Cal. 650), we held that, under section nine hundred and forty of the Code of Civil Procedure, it was necessary to the taking of an appeal, that the filing and service of the notice should be effected on the same day. It appearing, therefore, that no appeal has been taken in this case, the motion to dismiss the appeal must be denied.

The amendinent to section nine hundred and forty of the Code of Civil Procedure, if it changed the rule in this respect, did not take effect until July 1, 1874, and, therefore, does not apply to this case.

Motion denied.