Meyer v. City of San Diego

[61]

HENSHAW, J.

From a judgment rendered against them, and from an order of the court refusing to modify the findings and the judgment in certain particulars, the defendants, the city of San Diego and the Southern California Mountain Water Company, a corporation, jointly gave notice of their appeals. This is a motion to dismiss those appeals upon the ground that they are not supported by any bond or undertaking given upon appeal, as required by section 940 of the Code of Civil Procedure. It is conceded that no undertaking upon appeal was ever filed by the appellants, or by either of them. As for the city of San Diego no undertaking on appeal was requisite. (Code Civ. Proc., sec. 1058.) But the fact that the Southern California Mountain Water Company joined in the appeals of the city of San Diego'did not relieve that company from the necessity of filing a proper undertaking. Without such undertaking the appeals of the water company are ineffectual for any purpose and must be dismissed. But it does not follow therefrom that the appeals of the city of San Diego must share a like fate. By joining with the city of San Diego in giving notice of appeal the purposes of the notice were fully accomplished, and the situation is no different from that which would have been presented had the city of San Diego prosecuted its separate appeal and duly served the water company with notice thereof.

The motion to dismiss the appeals of the Southern California Mountain Water Company is therefore granted, while the motion to dismiss the appeals of the city of San Diego is denied.

McFarland, J., Temple, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.