Modoc Co-Operative Assn. v. Porter

HART, J.

The respondent has moved to dismiss the appeal taken from the judgment in the foregoing entitled cause under the method authorized by section 941a et seq. of the Code of Civil Procedure upon the grounds: 1. That appellant has not filed the undertaking required by section 953b of the Code of Civil Procedure (Stats. 1907, p. 751), by which the party giving notice that he desires and intends to appeal from any judgment, order or decree of the court,' shall undertake and agree to pay to the clerk the cost of preparing said transcript; 2. That appellant has not complied with rule 2 of this court by causing to be filed a printed or any transcript of the record in this court within forty days after her said appeal was perfected.

[272]

The record here on this motion, as certified to by the clerk of the court below, recites the following facts: That judgment was rendered in this action in. favor of the plaintiff and against the defendant, Phear E. Porter, on the thirteenth day of January, 1908, and that notice of said decision and judgment was served on said defendant on the twe.nty-first day of January, 1908; that on the thirtieth day of January, 1908, said defendant filed a notice of intention to appeal from the judgment, and at the same time requested that there be prepared a transcript of the testimony offered and received, rulings, etc., as authorized by section 953a of the Code of Civil Procedure; that on the same day said defendant “filed a purported undertaking to the said clerk to secure the cost of making up said transcript”; that the judge who tried the cause made an order, in compliance with the request of the defendant, requiring the official reporter of the superior court in which the said judgment was rendered to prepare and file said transcript, and that thereupon “said transcript was duly prepared and filed by said reporter” in the office of the clerk of said court on the twentieth day of February, 1908, and, “after due notice to the attorneys representing said plaintiff and the said defendant, Phear E. Porter, the said transcript was presented to the said judge and was by him, on the twenty-third day of March, 1908, approved and allowed.”

On the twentieth day of March, 1908, “the defendant, Phear E. Porter, filed a notice of appeal from the aforesaid judgment, and served said notice of appeal on said plaintiff on said twentieth day of March, 1908, acknowledgment of such service having been admitted upon said notice by said plaintiff, through its attorneys,” etc. On the twenty-fourth day of March, 1908, the said defendant filed an undertaking on appeal in said cause, in the sum of $8-41.40, being double the amount of the judgment, “and said undertaking is in due form.”