Lindy v. McChesney

California Supreme Court Dec 5, 1901 No. Sac. No. 998.Published

Before: Harrison

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Holding. The court held that an appellant must file a separate three-hundred-dollar undertaking for each appeal from an order or judgment, unless the appeal is from a judgment and an order denying a new trial. Failure to provide separate undertakings for multiple appeals requires dismissal, regardless of whether the individual orders are appealable.

Issues

Whether an appellant must file a separate undertaking for each appeal from an order or judgment to invoke appellate jurisdiction.
Whether the court may consider the appealability of an order or the merits of a motion for a new trial when deciding a motion to dismiss for failure to perfect an appeal.

Disposition. Appeals from orders and judgment dismissed; motion to dismiss appeal from order denying new trial denied.

Quotations verified verbatim against the opinion

“If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals.”

“The jurisdiction of this court cannot be invoked to determine whether an order is appealable until the steps prescribed by the statute for invoking such jurisdiction have been complied with.”

Synopsis

Appeal—Undertaking—Several Appeals—Dismissal.—An undertaking on appeal in the sum of three hundred dollars must be given in connection with every appeal from an order or judgment, in order to give the supreme court' jurisdiction of such appeal. The only exception to this rule is where an appeal is taken at the same time from a judgment and order denying a new trial. If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals; otherwise, a motion to dismiss the appeal will be granted. This rule is not varied by the fact that one or more of the orders included in said appeal is not appealable.

Id.—Order Denting New Trial—Examination op Record.—Upon a motion to dismiss an appeal, the supreme court will not consider any question which involves an examination of the record and the determination of the correctness of the action of the lower court upon the facts presented to it; consequently, an appeal from an order denying a new trial will not be dismissed upon the ground that the judgment was given against the appellant by default.

HARRISON, J.

Motion to dismiss the appeals.

1. The appellant, Mary E. Mann, gave notice to the respondents, February 11, 1901, of her appeal from the order made in the above-entitled proceeding, by which a nonsuit was granted and entered against her, and from the order given and entered therein, by which a default was granted and entered against her, and from the judgment given, and entered therein, in favor of the other defendants and against her. On the same day she filed an undertaking on appeal, in which, after reciting her notice of appeal, the sureties undertook and promised on her behalf that she would pay all damages and costs which might be awarded against her “ on said appeal or on a dismissal thereof,” not exceeding the sum of three hundred dollars. The respondents now move to dismiss these appeals, upon the ground that no undertaking has been filed sufficient to give to this court jurisdiction thereof.

The rule of practice in this state mnst be regarded as so settled as not to require the citation of authorities that, under the provisions of the code, there must be given an undertaking in the sum of three hundred dollars in connection with every appeal from an order or judgment, in order to give to this court jurisdiction of such appeal. The only exception to this rule is where an appeal is taken at the same time from a judgment and an order denying a new trial. If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals. Otherwise, a motion to dismiss the appeals will be granted. This rule is not varied by the fact that one or more of the orders included in said appeal is not appealable.

(Centerville etc. Co.

Bachtold,

109 Cal. 111.) The jurisdiction of this court cannot be invoked to determine whether an order is appealable until the steps prescribed by the statute for invoking such jurisdiction have been complied with. In

Centerville etc. Co.

v. Bachtold, 109 Cal. 111, we said: “Wheth

[3]

Lindy v. McChesney

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Synopsis

HARRISON, J.

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