Springer v. Springer

THE COURT.

—Motion to dismiss the appeal for want of a sufficient undertaking.

Judgment herein was entered in the superior court in favor of the defendants October 31, 1898, and on April 24, 1899, the plaintiff’s motion fo¿r a new trial was denied, and on the same day an order was made denying a motion made by the plaintiff to amend her statement. April 29th the plaintiff served and filed upon the defendants a notice of appeal from the judg

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ment, and also from the orders denying a new trial, and denying her motion to amend the statement. June 10th, the attorney for the respondents signed a certificate to the transcript on appeal, in which he certified that "an undertaking on appeal in due form was filed in said, cause within the time allowed hy law”; and on the same day the transcript was filed in this court. The appellant’s brief was filed June 29th, and on July 29th the respondents filed their brief in reply thereto, in which no objection was made to the sufficiency of the undertaking, or the right to have the appeal heard in this court. September 29th the respondents gave notice to the appellant of a motion to dismiss the appeals upon the ground that the undertaking on appeal is insufficient, and on October 9th this motion was submitted for decision.

In

Estate of Marshall,

118 Cal. 380, a similar motion was made where the counsel for respondents had signed a stipulation "that an undertaking in due form was properly made and filed within five days after the service and filing of the notice of appeal.” The motion was denied upon the ground that after the expiration of the time within which another undertaking might have been filed counsel could not be relieved of the •effect of such a stipulation upon the showing made therein. (See, also,

Carey v. Brown,

58 Cal. 185;

Forni v. Yoell,

95 Cal. 442; 99 Cal. 173.)

The facts of the present case are within the principles there determined, and upon the authority of that case the motion is •denied.