Martinez v. Gallardo (1855) · DecisionDepot

Martinez v. Gallardo

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1855Published

Before: Murray

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Holding. The court held that an appellant does not lose the right to a second appeal following the dismissal of an initial appeal due to a technical or clerical error, provided the appeal is filed within the statutory period.

Issues

Whether an appellant loses the right to a second appeal after a prior dismissal for a technical defect in the bond.

Disposition. Remanded/Allowed

Quotations verified verbatim against the opinion

“We are not disposed to consider the right lost, in consequence of some mere technical or clerical mistake.”

“There has been no final judgment rendered in this Court, and until such judgment, an appeal ought to be entertained at any time within the period allowed by law.”

Synopsis

Where an appeal is dismissed for want of a proper bond, and no final judgment has been rendered, an appeal can be taken at any time within the period allowed by law.

Murray, C. J., delivered the opinion of the Court. Bryan, J., concurred.

The appeal in this case has once been dismissed for want of a proper bond.

It is now contended that the appellant has lost his right to a second appeal by such dismissal.

We are not disposed to consider the right lost, in consequence of some mere technical or clerical mistake.

There has been no final judgment rendered in this Court, and until such judgment, an appeal ought to be entertained at any time within the period allowed by law.

No inconvenience can result from such a rule, as the appellant is responsible in damages if his appeal be frivolous or prosecuted for delay.

Martinez v. Gallardo

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