Theisen v. Matthai

THE COURT.

Motion to dismiss appeals.

The action is one to quiet title to a parcel of land situate in the county of Tehama. Judgment in favor of the plaintiff was entered on the fifth day of July, 1911. On August 7, 1911, the defendant Rose Matthai filed her notice of intention to move for a new trial. The defendant Louise Matthai had theretofore, to wit, on July 18, 1911, filed a notice of intention to move to vacate and set aside the judgment. The plaintiff, in October, 1911, served and filed a notice that he would move the court for an order striking out the proposed statement of the defendant Rose Matthai and the affidavits on motion for a new trial, and dismissing the motion of Rose Matthai for a new trial and the motion of Louise Matthai for an order vacating and setting aside the judgment. On November 15, 1911, the court made its order granting the plaintiff’s motion as just set forth. On January 2, 1912, the defendants filed a notice of appeal, whereby they stated that they appealed from the judgment, and also from the order of November 15, 1911, striking out the defendant Rose Matthai’s proposed statement and the affidavits on motion for new trial, and dismissing the motion of Rose Matthai for a new trial and the motion of Louise Matthai for an order vacating and setting aside the judgment.

[252]

The plaintiff has moved to dismiss the appeal from the judgment and also the appeal (or appeals) from the orders of November 15, 1911.

Among the grounds urged for the dismissal of the appeal from the judgment are: “That the said appeal was not taken within the time required by law therefor . . .; 2. That no valid or sufficient undertaking on appeal has been given or filed by said defendants or either of them on said appeal or on any of the appeals herein.”

Of course, if the appeal may be regarded as taken under the “new and alternative method” provided by sections 941a, 941b, and 941c of the Code of Civil Procedure, any defects in the undertaking must be disregarded for the reason that under those sections no undertaking is required. And it is thoroughly settled in this court that an appeal will not be dismissed where the appellant has complied with all of the requirements of the new method, even though he may have supposed he was proceeding under the old method and may have made an ineffectual attempt to take some of the steps necessary before the enactment of the new .provisions.