Pacific Paving Co. v. Verso

HALL, J.

Respondents have made a motion to dismiss .the appeal in this ease upon the ground that the appeal bond filed upon taking the appeal is so defective as not to support the appeal.

Two defects in the bond are pointed out by respondents, one of which they concede is not fatal, and may be corrected by the filing in this court of a new bond under section 954 of the Code of Civil Procedure. Before the hearing of this motion a new bond was filed and approved, which is sufficient in form and substance to support the appeal, provided the other defect in the original bond is not fatal to the appeal.

The appeal is from a judgment, and the bond properly refers to the judgment appealed from so as to fully identify it. The defect urged as fatal consists of the recital that “Whereas an appeal is about to be taken to the supreme court,” when in fact the appeal was taken to this court.

It is contended that this does not identify the appeal, and that therefore the bond is no bond at all on this appeal.

It is true that it has been held that where the recitals in the undertaking do not identify the particular appeal which

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it is intended to perfect, the undertaking is considered as totally void for any purpose, and not merely insufficient.

(Little

v.

Thatcher,

151 Cal. 559, [91 Pac. 321];

Wadleigh

v.

Phelps,

147 Cal. 135, [81 Pac. 418] ;

Estate of Heydenfeldt,

119 Cal. 346, [51 Pac. 543];

Centerville etc. Co.

v.

Bachtold,