Spreckels v. Spreckels

Temple, J. In this case two appeals were taken by-plaintiffs—one from an order dissolving an injunction, the other from the judgment. Only one undertaking on appeal was given, which was intended to serve for both appeals. The undertaking sufficiently recites the order and the judgment, and the sureties stipulate “ that the said appellants will pay all damages and costs which may be awarded against them, or either of them, on the appeals, or either of them, or on the dismissal thereof, or of either of them, not exceeding six hundred dollars, to which amount we acknowledge ourselves jointly and severally hound.”

The statute requires an undertaking for each appeal, to the effect that the appellant will pay all damages and costs not exceeding three hundred dollars. When there are several appeals in the same case, the different undertakings may be in the same instrument. (Sharon v. Sharon, 68 Cal. 326.) The instrument should, however, contain an undertaking for each appeal. A motion to « dismiss both appeals was made, based upon the supposed defects of the undertaking. It is claimed that it does not constitute an undertaking in either appeal, and that this court has no jurisdiction.

The undertaking is jurisdictional only because it is made so by statute.

In section 954 of the Code of Civil Procedure it is provided that “no appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal.” We are given jurisdiction by the constitution, and the statute is valid only because it is a reasonable regulation of the exercise of that jurisdiction. It is a mere rule of practice, and is just what the statute makes it. It could have been [62]provided that an undertaking should be filed after the motion was noticed, although none had been previously given.

The provision is that a new undertaking may be filed in cases where the undertaking already given is so insufficient that, but for the privilege of giving a new one, the appeal would be dismissed. For it is implied that, in some cases, the appeal will be dismissed, unless a new undertaking be filed.

It cannot be held, then, that, unless the undertaking is sufficient to sustain an appeal, this court has no jurisdiction to allow a new undertaking.