Crocker v. Crocker

PLUMMER, J.

This matter is before the court upon the respondent’s motion to dismiss appellantappeal from a judgment entered in said cause in the superior court of the county of Placer on the seventeenth day of July, 1925, on the following grounds: “First: That no ‘notice of appeal’ as prescribed by Section 953a of the Code of Civil Procedure of the State of California was filed within ten days after notice of the Court’s decision denying the motions for a new trial in the above-entitled cause; Second: That no ‘draft’ or ‘bill of exceptions’ as prescribed by Section 650 of the Code of Civil Procedure of the State of California was presented or filed or served on the adverse party within the ten days after notice of the Court’s decision denying the motion for a new trial, or at all, in the above-entitled cause; Third: That no ‘transcript’ was filed within twenty days after the filing of the notice of appeal, or at all, as prescribed by Section 953a of the Code of Civil Procedure of the State of California.”

Although several grounds for the motion are set forth in the notice, only one fact is really argued and presented for determination, to wit: The failure of the appellant to file nn undertaking with the clerk of the trial court in which the cause was tried, as provided for by section 953b of the Code of Civil Procedure. The record shows entry of judgment on July 17, 1925, motion for new trial heard and de

[608]

termined August 14, 1925. There is nothing in the record showing that notice of the order of the trial court overruling appellant’s motion for a new trial was given. On September 12, 1925, the appellant filed a notice of appeal and on the same day filed a notice with the clerk to have a transcript prepared. No question is made as fo the sufficiency of these notices. On the seventeenth day of September, 1925, the appellant filed an undertaking to pay all costs on appeal. On the sixth day of February, 1926, the appellant filed an undertaking securing the payment of costs for preparing the transcripts. The undertaking was filed two days after the service of notice to dismiss. It would appear from the record that counsel for appellant at the time of filing the undertaking oñ the seventeenth day of September, 1925, was laboring under a misapprehension as to the kind of undertaking that should be filed in order to comply with the sections of the code governing appeals taken according to the alternative method.