Crew v. Diller (1890) · DecisionDepot

Crew v. Diller

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

California Supreme Court Dec 1, 1890 No. No. 13572Published

Before: Hayne

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Holding. The court dismissed the appeals because the appeal from the judgment was untimely and the appeal from the order denying a new trial was not perfected due to a deficient undertaking.

Issues

Whether the appeal from the judgment was filed within the required time limit.
Whether the appeal from the order denying a new trial was properly perfected by the undertaking.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“The appeal from the judgment was too late.”

“The appeal from the order was not perfected.”

“We therefore advise that the attempted appeals be dismissed.”

Synopsis

Appeal — Undertaking — Two Appeals in Same Notice — Construction. — If two appeals are taken in the same notice, and the undertaking recites the appeal from the judgment, but does not mention the other appeal, and is conditioned to pay damages on “ the appeal,” it will be construed to refer only to the appeal recited.

Id.—Failure to File Undertaking in Time — New Undertaking in Supreme Court. — If no undertaking be filed in the court below within the time allowed by law, the appeal is ineffectual for any purpose; and it cannot be perfected by the filing of an undertaking in the supreme court. The provision for such new undertaking is only where a defective undertaking has been filed in time in the court below.

Hayne, C. — This is a motion to dismiss an appeal from a judgment, and an appeal from an order denying a new trial.

The judgment was entered in December, 1887. The order was made in September, 1889. The notice of appeal was filed on October 25, 1889, and was served the next day. The undertaking recited the appeal from the judgment, and was conditioned to pay the damages on “the appeal,” but made no mention of the appeal from the order. (See certified copy of undertaking and stipulation filed in supreme court.) In May, 1890, the plaintiff presented a new undertaking, sufficient in form, to one of the justices of the supreme court, and it was approved by him and filed.

The appeal from the judgment was too late.

The appeal from the order was not perfected. In this regard, the case is precisely like Schurtz v. Romer, 81 Cal. 245. The counsel for the plaintiff say that this case should be overruled; but we think that it is in accord with the statute and in the line of previous decisions.

We therefore advise that the attempted appeals be dismissed.

Belcher, C. C., and Foote, C., concurred.

, The Court. — For the reasons given in the foregoing opinion, the id-tempted appeals are dismissed.

Crew v. Diller

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