Buchner v. Malloy

ANGELLOTTI, J.

This is a motion to dismiss the appeal of Daniel Malloy from the judgment given against him in the above-entitled action, and from the order denying his motion for a new trial in said action, upon the ground that no sufficient or any undertaking on appeal was filed upon either of said appeals.

It will be assumed for the purposes of the decision that it appears from the record before us that the only undertaking on appeal filed in the superior court was the one of which a copy is contained in the moving papers. So far as is material, that undertaking is as follows:—

“Whereas Daniel Malloy, one of the defendants in the above entitled action, is about to appeal to the supreme court of the state of California, from a judgment and decree made and entered against him in said action, in the said superior court in favor of the above named plaintiff . . . , on the 8th day of February, A. D. 1907, . . . and from

said defendant, Daniel Malloy’s motion for a new trial herein made, entered and filed on the 2d day of July, A. D. 1907.

“Now, therefore in consideration of the premises and of such

appeal,

we the undersigned Peter Blake and E. J. Eller, both of the county of Siskiyou, state of California, do hereby jointly and severally undertake and promise on the part of said appellant Daniel Malloy, that the said appellant Daniel Malloy, will pay all damages and costs which may be awarded against said appellant, Daniel Malloy,

on the appeal or on a dismissal thereof,

not exceeding three hundred and 00-100 ($300.00) dollars to which amount we acknowledge ourselves jointly and severally bound.” The italics are ours.

So far as the imperfection in the recital of the appeal from the order denying a motion for a new trial is concerned, the undertaking reciting an appeal from the appellant’s

motion

for a new trial made, entered, etc., on July 2, 1907, instead of from the

order

denying

such motion,

which the record shows was made and entered on that day, there can be no doubt