Boling v. Alton

SHAW, J.

The plaintiff moves to dismiss the so-called appeal on the ground that no notice of appeal has been given and that, consequently, no appeal has been taken.

Section 940 of the Code of Civil Procedure declares that “An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice

stating the appeal from, the sarnie,

or some specific part thereof, and serving a similar notice upon the adverse party or his attorney.” The defendant has not filed any notice “stating the appeal” from any judgment or order or any part thereof, or any paper purporting to be a notice of appeal under this section.

Section 941b, prescribing the only other mode of appeal, declares that any person having the right of appeal from a judgment, order, or decree “may appeal therefrom by filing

[298]

with the clerk of the court in which the judgment, order or decree is rendered, a notice entitled in the cause in which said judgment, order or decree was made, which said notice shall state that the person giving the same does thereby appeal to the supreme court or district court of appeal, as the case may be, from the judgment, order or decree, or some specific part thereof; and the said notice must identify the said judgment, order or decree, or the part thereof appealed from, with reasonable certainty.” No notice conforming to this section, or purporting or attempting to comply therewith, has been filed.

The only proceeding taken by the defendant in the cause, after the judgment, was to file a notice with the clerk of the superior court, as provided in section 953a, to obtain a transcript of the evidence in lieu of a bill of exceptions. He also served the plaintiff with a copy of this notice. The part of the section relating to such notice is as follows:—

"Any person desiring to appeal from any judgment, etc., . . . may, in lieu of preparing and settling a bill of exceptions pursuant to the provisions of section six hundred and fifty of this code, file with the clerk of the court from whose judgment, order or decree said appeal is taken, or to be taken, a notice stating that he desires or intends to appeal, or has appealed therefrom, and requesting that a transcript of the testimony offered or taken, evidence offered or received, and all rulings, instructions, acts or statements of the court, also all objections or exceptions of counsel, and all matters to which the same relate, be made up and prepared. Said notice must be filed within ten days after notice of entry of the judgment, order or decree.”