Lang v. Specht

McKEE, J. This is the second motion to dismiss the appeal in this ease upon the grounds that the printed transcript of the record was not filed within forty days after the appeal had been taken, nor was a copy of it, or of the written transcript, served upon the respondent; nor is there upon the transcript, as filed, any written evidence of its service, or of a waiver of such service, as required by rule 2 of this court.

The appeal was taken on the 13th of September, 1880. The printed transcript is indorsed, filed December 24, 1880, more than sixty days after the taking of the appeal; and there is nothing in the record showing that the time for filing the printed transcript had been extended. That being the case, the respondent was entitled to move for a dismissal of the appeal. But he has heretofore exercised that right, for on the 6th of December, 1880, he made a motion to dismiss the [112]appeal on those grounds, and on the additional ground that the appeal bond was insufficient, because “it consisted of an undertaking in the sum of three hundred dollars, coupled with an undertaking to stay execution in the sum of two thousand dix hundred and sixty-eight dollars, embraced in one instrument, under section 947 of the Code of Civil Procedure, and the sureties thereto had failed to justify, and no other or sufficient sureties or undertaking had been filed within the time prescribed by law.”

That motion was argued by counsel solely upon the last ground, and the court denied the motion, holding upon the authority of Schact v. Odell, 52 Cal. 449, and Hill v. Finnigan, 54 Cal. 311, that the appeal-was not affected by the failure of the .sureties to justify. It therefore refused to dismiss the appeal. That decision is decisive -of all the points which were involved in the motion.

But it is urged that, although the grounds of the present motion were contained in the precedent motion, they were not taken in argument, and consequently were not passed upon by the decision. The nonargument of them, however, is immaterial. Having been made distinctive grounds of the motion which was submitted and decided, they were presumptively considered by the court, and its decision, whether it referred to them or not, or was valid or erroneous, must be regarded as the law of all the points involved in the motion, and as such is obligatory upon the court and the parties to the action: Jaffe v. Skae, 48 Cal. 540; Yates v. Smith, 40 Cal. 663.

This motion being made upon the same grounds which were contained in the precedent motion is, therefore, dismissed. It is so ordered.