(dissenting) — I concur in the reasoning and conclusion reached in paragraph one of the majority opinion. That, it seems to me, determines the entire matter and renders most of the reasoning and all of the conclusions reached in the subsequent paragraphs of the opinion inconsistent and the matters therein discussed errors without prejudice. Under the express provisions and the spirit of our code (Rem. & Bal. Code, § 1752), requiring us to render judgment upon the merits, disregarding all technicalities, to my mind the merits are entirely on the side of respondents here, no substantial rights of appellant were so violated as to justify a reversal of the judgment, and the judgment should stand affirmed. I therefore dissent.