Wadsworth v. Wadsworth

Searls, C. J. ■ Motion to dismiss an appeal.

It appears that plaintiff filed her notice of appeal to this court on the eighteenth day of August, 1887.

On the twenty-third day of August an order of the [105]judge of the court below was made and filed, extending the time of plaintiff to file an undertaking on appeal twenty days, and on the twelfth day of September a similar order was made and filed extending the time for a further term of ten days.

An undertaking was filed September 22, 1887, which was in due time, provided the court below, or a judge thereof, had authority to extend the time for filing such undertaking by said orders.

Section 940 of the Code of Civil Procedure provides that “ the appeal is ineffectual for any purpose, unless, within five days after service of the notice of appeal, an undertaking be filed,” etc.

This section, standing alone, would be conclusive; but it is, we think, subject to the provision of section 1054 of the same code, which provides that the time for doing certain things, among which are the filing of undertakings, may be extended not exceeding thirty days by the court, or a judge thereof, upon good cause shown.

It followrs that the undertaking was filed in time, and as the appeal was not perfected until the undertaking was filed, the period of forty days for filing the transcript in this court had not expired when the motion to dismiss was made.

The motion to dismiss upon the grounds,—1. That the transcript was not filed in time; and 2. That the undertaking on appeal was not filed within five days after service and filing of the notice of appeal,—is denied.

McFarland, J., Temple, J., Paterson, J., Sharpstein, J., and Thornton, J., concurred.