Rauer's Law & Collection Co. v. Standley

CHIPMAN, P. J.

Motion to dismiss the appeal. On September 8, 1905, in the absence of defendant’s attorney, plaintiff’s attorneys appeared in court and moved that the default of defendant be entered, which motion was denied. Thereafter, and on the same day, plaintiff’s attorneys “went to the clerk of said court and prevailed upon said clerk to enter a purported or pretended default of the defendant in the action.” On the twenty-third day of September defendant gave notice of motion to set aside and open the default of defendant under section 473 of the Code of Civil Procedure. The motion was heard on the 25th of that month, and the court made an order on the 27th of September granting the motion. Plaintiff appeals from this order.

The notice of appeal was served and filed November 25, 1905. It appeared at the hearing of the motion to dismiss the appeal that no undertaking was filed until December 5, 1905. Attached to the undertaking was a paper signed by the judge of the superior court, and dated December 1, 1905, granting plaintiff to and including December 6, 1905, in which to file its undertaking on an appeal herein. It appears from the affidavit of the clerk that this paper was never marked filed and was never presented to nor filed with the clerk until December 5, 1905, and then only as a paper attached to the undertaking, which latter was marked filed on that day, and that the clerk did not know that this paper was attached to the undertaking until his attention was called to it on January 10, 1906. It appears, also, that there never has been a trial of said action and that no judgment has ever been rendered therein.

Defendant makes two points: 1. That no undertaking was filed in time; and 2. That the order is not an appealable order. We think that both of these points must be held to be well taken.

It is provided by section 940, Code of Civil Procedure, that “the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal an undertaking be filed or a deposit be made with the clerk.” The notice of

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appeal was served on November 25th; the 30th of November, 1905, was a holiday, and December 1st was the last day on which the undertaking could be filed so as to be effectual. It was not filed until December 5th. This was too late to accomplish its object unless the time had been extended.