Colusa Milling Co. v. Draper Dray & Storage Co.

CHIPMAN, P. J.

It appears that judgment was made and entered in the above-entitled cause on November 30, 1909, in favor of plaintiff for the sum of $557.50, with interest at the rate of seven per cent per annum from said date, together with costs taxed, $63.62; that on December 13, .1909, defendant moved to vacate and set aside said judgment and on said last-mentioned date the court made and entered its order denying said motion; that on January 29, 1910, defendant filed in said court its notice of appeal to this court from said judgment and order, which said notice of appeal was duly served upon plaintiff, on January 29, 1910; that “no statement on appeal or bill of exceptions has been made, settled or filed in said cause”; that no proceedings are pending for the settlement of any proposed statement or bill of exceptions in said cause, and that appellant has not requested the clerk to certify to a correct or any transcript. Defendant also claims that the undertaking is defective in certain essential particulars.

The grounds for the motion to dismiss the appeal are:

1. That no sufficient undertaking on appeal has been given by appellant;

2. That no transcript of the record in said cause has been made or filed in this court.

No bond on appeal was required to give this court jurisdiction. (Mit

chell

v.

California etc. S. S. Co.,

154 Cal. 731;

Russell

v.

Banks,

11 Cal. App. 450, [105 Pac. 261].)

Rule II requires the transcript in a civil action to be filed within forty days after the appeal is perfected, except under certain circumstances not here made to appear. Rule* V provides that the appeal may be dismissed on motion, upon notice given, if the transcript be not filed within the time prescribed.

The appeals from the judgment and order are dismissed.

Hart, J., and Burnett, J., concurred.