Corcoran v. Desmond

Searls, C. This is a motion to dismiss an appeal from a final judgment and from an order denying a motion made after judgment to vacate and set aside the judgment aforesaid.

The motion to dismiss is based upon the insufficiency of the undertaking on appeal, and upon the further ground that no sufficient transcript has been filed, as required by rule 2 of this court.

The judgment was in the ordinary form of a decree to foreclose under the mechanics’ lien law of this state.

The notice of appeal specifies that the defendants’ “appeal .... from the judgment .... in favor of said plaintiffs, .... and also from the order made and entered, .... denying defendants’ motion to vacate and set aside the judgment aforesaid.”

There is but one undertaking on the appeal, which recites the fact that defendants have appealed from the judgment, which is described, and the date of its rendition set out, and that they have also appealed from the order of the court denying defendants’ motion to vacate the judgment, and gives the date of the entry of such order.

The undertaking then proceeds in the usual form to provide that the appellants will pay all damages and costs which may be awarded against appellants, etc., not exceeding three hundred dollars, and then recites that appellants are desirous of staying the execution of the judgment appealed from in so far as relates to the sale and delivery of possession of the land, etc., described in [102]the judgment, in consideration of which the sureties bind themselves in the further sum of one thousand dollars, that appellants will not commit waste, and that if the judgment be affirmed or the appeal dismissed, appellants will pay the value of the use and occupation, etc., not exceeding the said sum of one thousand dollars, which is recited as the amount fixed by the judge as an undertaking to stay proceedings, as provided by section 945 of the Code of Civil Procedure

The undertaking is one that would be held sufficient if the appeal was taken from the judgment alone.

Under these circumstances, the question presented is: 1. Is the undertaking sufficient to cover both appeals? and if not, then, 2. Does the undertaking show with sufficient certainty the appeal on account of which it was given, to warrant us in holding that one only of the appeals should be dismissed?