Hoyt v. Stark

[179]

HENSHAW, J.

This is a motion to dismiss an appeal. The uncontroverted facts are the following: The office of the county clerk of Santa Clara County opens at nine, A. M., and closes at five, p. m. After the hour of five, p. m., appellant’s attorney went to the office of the county clerk to file his undertaking upon appeal. It was the last day allowed him by law for this purpose. Finding the office closed, he went to a social club in the city of San José, where he found one of the deputy county clerks. To him he explained the circumstances. The deputy took the undertaking and indorsed it as filed upon that day and date. At 9:30, A. M., upon the following day, respondent’s attorney, visited the clerk’s office, examined the proper books and registers, and found no record of the filing in the clerk’s office of the necessary undertaking. Thereafter the deputy county clerk to whom had been intrusted the undertaking, arriving at the office, delivered the bond to a fellow-deputy, who placed it in its proper receptacle and made in the proper books the entry of its filing.

The single question thus presented is, whether, under section 940 of the Code of Civil Procedure, the undertaking was filed in time. That section, in terms, requires a filing “with the clerk of the court in which the judgment or order appealed from is entered.” It is necessary for the appealing party so to file within five days after the service of his notice of appeal. The adverse party thereafter has a limited time within which to except to the sufficiency of the undertaking, and to call upon the sureties to justify. The undertaking may be filed at any time within the five days, but may not be filed thereafter. Respondent’s time for objection begins to run, not from the expiration of the five days, but from the time of actual filing, which may be upon any day within the five days. No actual notice is required to be given to the respondent’s attorney. It becomes his duty, therefore, to watch the office, and learn from an inspection of the proper records whether the undertaking has been filed. But if no such undertaking shall have been filed at the expiration of the five days, his duty in this regard is at an end. “ It is clearly intended that the adverse party shall not be compelled to watch the clerk’s office for the filing of an undertaking more than five days after he has notice of the filing of the notice of appeal.