Boyd v. Burrel

McKinstry, J.: This appeal must be dismissed. The notice of appeal was served upon the attorneys of the adverse parties December 18, 1879; the undertaking on appeal was filed January 30, 1880.

Section 940 of the Code of Civil Procedure declares that an appeal shall be of no avail unless the undertaking shall be filed within five days after service of notice.

The notice of appeal was filed January 30, 1880. But the [282]filing with the Clerk of the notice of appeal and its service upon the adverse party are not parts of a continuous act, which, as a whole, constitutes the service of the notice of appeal. Throughout the Code of Civil Procedure papers are said to he filed with the Clerk, served on opposite parties; and the terms are placed in opposition in the very section which provides for notice of appeal. (§ 940.) Within a limited time after the undertaking on appeal is filed the adverse party may except to the sufficiency of the sureties. (Code Civ. Proc., 948.) 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. The phrase “the order of service is immaterial” is the equivalent of “whether the service precede or follow the filing of the notice is immaterial.” Thus construed, the distinction between “filing” and “ service,” already asserted in the previous portion of the same section, is maintained. Its correctness is rendered apparent by a review of the legislation with respect to notices of appeal. Under the Practice Act of 1851, an appeal was made by filing with the Clerk a notice, etc., “ and serving a copy of the notice upon the adverse party or his attorney.” (§ 337.) While that Act was in operation it was repeatedly held that the filing must precede or be contemporaneous with the service. (Buffandeau v. Edmondson, 24 Cal. 94.) Originally the Code of Civil Procedure provided that the undertaking should be filed at the same time with the notice of appeal. The time or order of the service was not expressly declared, but as the service was of a copy, it was assumed by the Court that the notice should be first filed, or filed on the same day with the service.

The amendment of 1880, has made it immaterial that the notice is filed after it is served; but still provides that, “an appeal shall be ineffectual for any purpose, unless, within five days after service of the notice of appeal, an undertaking shall be filed,” etc. In this case the undertaking was not filed within five days and the appeal is “ineffectual.”