Robinson v. Templar Lodge No. 17

McFarland, J. The motion of respondent to dismiss the appeal, notice of which was served and filed in the superior court on the fifth day of November, 1895, upon the ground that no undertaking on said appeal was ever filed, is granted, and said appeal is dismissed without prejudice to another appeal.

Respondent has also made a motion to dismiss the appeal, the notice of which appears on page 127 of the printed transcript, upon the grounds that the notice was served on December 31, 1895, and that neither the notice nor the undertaking was filed until January 6, 1896. These grounds are not tenable. The notice of appeal may be served before filing, and the code does not prescribe any particular time after service within which it must be filed (Noonan v. Nunan, 76 Cal. 44; [42]Galloway v. Rouse, 63 Cal. 280; Boyd v. Burrell, 60 Cal. 280; Code Civ. Proc., sec. 940); but the undertaking must be filed within five days after the service of the notice of appeal. In this cáse the service was on December 31, 1895; the fifth day of January, 1896, was Sunday, and thus appellant had until the 6th of January to file his undertaking. The said motion to dismiss said second appeal, the notice of which appears on page 127 of the transcript, is denied.

Henshaw, J., and Temple, J., concurred.