Little v. Jacks

The Court. — The court is satisfied with its opinion as rendered on the point considered in it. It accords with several former decisions, and there is none contrary to it brought to our notice or of which we are aware.

But there is a point which the court wishes argued again, that is, whether respondent waived his right to. object to the irregularity in filing the undertaking on appeal before service of the notice of appeal by a stipulation in writing that the cause be placed on the calendar of this court for hearing for a day referred to in it, in the place of another case entitled Buclcnall v. Huntsman.

To this point the reargument will be limited.

And it is ordered that the cause be placed on the calendar of the first Monday in February, 1886, for such reargument.

The following is the opinion above referred to, rendered on the 18th of December, 1885:—

Ross, J. — The question on this motion is whether, under the provision of the statute which declares that “the appeal shall be ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed,” etc. (Code Civ. Proc., sec. 940), an appeal is effectual when the undertaking is filed before service of the notice of appeal.

If the statute is to be given effect, which must be done,

[345]we do not see how the question can he answered in any other way than in the negative. The statute expressly declares the appeal to be ineffectual for any purpose, unless within five days after service of the notice of appeal the required undertaking be filed. After service does not mean and cannot be held to mean before service. The undertaking relates to the notice, but without the notice there is nothing to which it can apply. We must grant the motion.

Appeal dismissed.

Myrick, J., Morrison, 0. J., Thornton, J„ and Sharp-stein, J., concurred.

After a reargument, the following opinion was rendered on the 21st of May, 1886.

Sharpstein, J. — The motion to dismiss the appeal is based on the ground that the undertaking on appeal was filed before the notice of appeal was served.