McAulay v. Tahoe Ice Co.
Before: Chipman
Synopsis
Appeal from Judgment and Conditional Order for Judgment— Single Undertaking.—Upon an appeal from a judgment, and from a conditional order on the same day that judgment be entered for defendant on bis payment to the clerk of a specified sum for jury fees, which appellant had declined to pay, but one undertaking on appeal in the sum of $300 is required.
Id.—Notice of Appeal to Supreme Court—Improper Undertaking—- • Misdescription of Court—Dismissal.—Where the notice of appeal properly designated the supreme court as having sole jurisdiction, since the amount claimed in the complaint of appellant exceeded $2,000, the undertaking on appeal should have conformed thereto; and where it misdescribed this court as the one to which the appeal was taken, as “the appellate court for the third district of the state of California,” it was ineffectual for any purpose; and the appeal must be dismissed.
Id.—Eight to Substituted Undertaking not Involved.-—Where no request was made by the appellant for leave to file a substituted undertaking, and none was filed in the supreme court before the hearing of the motion in this court to dismiss the appeal, no question arose upon such hearing as to the right of appellant to have a proper undertaking approved by a justice of the supreme court under section 954 of the Code of Civil Procedure.
CHIPMAN, P. J.
Action for personal services as agent of defendant. The cause was tried before a jury and, after deliberation, the jury returned into court and, being asked if they had agreed upon a verdict, answered they had. Before the amendment or recording thereof, the judge of the court ordered the plaintiff to pay the jury fees of $92, whereupon “counsel for plaintiff stated that plaintiff was unable to pay said jury fee.”
The court then “ordered that plaintiff be granted ten days within which to pay the jury fee, and, if not paid during that time, the court would enter a judgment in favor of the defendant because of the failure of said plaintiff to pay said jury fee. The jury were then excused from further service.” There was no rule of court regulating the payment of jury fees; although it was the practice of the court to require payment of the jury fee by the prevailing party before the verdict was read. Upon April 25, 1905, counsel for defendant gave notice of a motion to be heard on May 1, 1905, to dismiss said action and enter judgment for defendant upon the grounds, among others, that “ten days have elapsed since said court ordered plaintiff to pay the jury fees and the same have not been paid.” Said motion was continued to May 20, 1905, on which date, on motion of defendant, the court made and entered an order “that judgment in said ac
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tion be entered in favor of the defendant upon payment by the defendant to the clerk of this court of said sum of $92.00. ’ ’
And on the twentieth day of May, 1905, judgment was entered that the plaintiff take nothing by his action.
Thereafter, to wit, on June 6, 1905, plaintiff served notice in the said action that he “appeals to the Supreme Court of the State of California, from the judgment therein entered, in said Superior Court, on the 20th day of May, 1905, . . . also from the order of said court entered herein, dated May 20th, 1905.”
On June 6, 1905, plaintiff filed with the clerk of the court an undertaking in said action entitled “In the Superior Court, County of Nevada, State of California. Thomas Mc-Aulay, plaintiff, vs. Tahoe Ice Company, a corporation, defendant. Undertaking on appeal.” The body of the undertaking reads as follows: “Whereas, the plaintiff, Thomas MeAulay, in the aboverentitled action intends to appeal to the Appellate Court, for the Third District, of the State of California, from a judgment and order made and entered against plaintiff in said action, in the Superior Court, in favor of defendant, Tahoe Ice Company, in said action, entered on the 20th day of May, A. D. 1905. . . . Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, . . . undertake and promise, . . . that the said appellant will pay all damages and costs which may be awarded against him on the appeal or on a dismissal thereof, not exceeding three hundred dollars.”
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