Forni v. Yoell
Before: Beatty
Synopsis
■ Appeal — Undertaking— New-trial Order not Referred to — Dismissal — Stipulation—Estoppel. — Although, as a general rule, an appeal from a new-trial order must he dismissed where the undertaking on appeal from the judgment does not refer to the order, and there is no undertaking on appeal from the order, yet where a respondent stipulated in writing, within sixty days after the overruling of the motion for a new trial, that the appellant had in due time given and filed a good and sufficient undertaking upon appeal in the cause, he is estopped from claiming, after the time for appeal has elapsed, that the appeal must he dismissed because of the failure of the undertaking to refer to the appeal from the new-trial order.
Beatty, C. J. The defendants appealed from the judgment, and from an order denying their motion for a new trial. The plaintiff moves to dismiss the appeal from the order, upon the ground that the undertaking on appeal makes no reference to the appeal therefrom, and consequently, that so far as the order is concerned, the appeal is ineffectual for any purpose. (Code Civ. Proc., sec. 940.)
It is conceded by the appellant that his undertaking as filed was in fact defective in the particular specified, and it is settled by numerous decisions of this court that in such case the appeal must be dismissed, if the respondent has not waived the defect, or done some act by which he is estopped to raise the objection. (People v. Center, 61 Cal. 191; Corcoran v. Desmond, 71 Cal. 100; Home and Loan Ass’n v. Wilkins, 71 Cal. 626; Berniaud v. Beecher, 74 Cal. 617; Wood v. Pendola, 77 Cal. 82; Schurtz v. Ro[443]mer, 81 Cal. 245; Crew v. Diller, 86 Cal. 555; Pacific Paving Co. v. Bolton, 89 Cal. 155.)
But it is contended that the respondent in this case has waived the defect in the undertaking, and is thereby estopped to make the objection upon which his motion is based. The order overruling the motion for a new trial was made and entered December 21, 1891, and some time prior to January 30, 1892, the respondent stipulated in writing, among other things, “that the appellant has in due time given and filed a good and sufficient undertaking on appeal in said cause.” This stipulation is contained in the original transcript filed in this court on January 30, 1892, and must, therefore, have been signed on or prior to that date, and before the time for appealing from the order had expired.”
This fact distinguishes the present case from Perkins v. Cooper, 87 Cal. 241. There a similar stipulation was given, but not until the time for appealing from the order had expired, and if the stipulation had been refused, the appellant could not have given a new notice of appeal. But here, if the stipulation had not been given, the defendants had ample time to file and serve a new notice, and it may well be that their reliance on the stipulation prevented them from doing so. Under such circumstances, we think the respondent should not be allowed, after the time for appealing has elapsed, to contradict his former admission.
Motion denied.
De Haven, J., Harrison, J., Garoutte, J., McFarland, J., and Sharpstein, J., concurred.
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