Schurtz v. Romer

Works, J. The appellant Kerkow gave notice of an appeal from the judgment,- and from the order denying him a new trial. He gave an undertaking on appeal from the judgment alone. No reference was made in the undertaking to the order denying the new trial, or the appeal therefrom. After the time provided by law for giving the undertaking on appeal in the court below, the said appellant applied to the chief justice to approve an undertaking to be filed in this court. The undertaking was approved by the chief justice, and subsequently filed. The respondent moves to dismiss the appeal, on the ground that no bond was filed in time in the court below, and no attempt having been made to file such bond, the one approved by the chief justice and filed in this court could not be effective.

An appeal is taken by serving and filing a notice of appeal within the time prescribed by law. But the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed, or a deposit of money be made, or the undertaking be waived by the adverse party in writing. (Code Civ. Proc., sec. 940.)

The giving of - the undertaking is necessary to confer jurisdiction on this court, and must be given within the time prescribed by the code. But section 954 of the code provides: “ If the appellant fails to furnish the

requisite papers, the appeal may be dismissed; but no appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient undertaking, ap[246]proved by a justice of the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal.”

This section does not authorize the giving of an undertaking in this court in the first instance, but when an insufficient one has been given in the court below, the defect may be remedied by filing- a new undertaking here. The giving of the new bond is in the nature of an amendment to a defective proceeding. In this case no bond was given on the appeal from the order denying a new trial, nor was there any attempt to do so. For these reasons, the bond approved and filed in this court was ineffectual for any purpose, and the appeal must be dismissed. No amendment of the undertaking could be allowed, because none had been given, and there was nothing to amend. The precise question has been decided by this court in a case in which leave was asked to file an undertaking here. The court said: “The section referred to [section 954J does not authorize it. It only authorizes a new undertaking when the one filed is insufficient. But in this case there has really been none filed. To allow new ones to be filed would be in effect to permit a new appeal to be perfected after the time fixed by law.” (Home and Loan Associates v. Wilkins, 71 Cal. 626; see also Berniaud v. Beecher, 74 Cal. 617; Wood v. Pendola, 77 Cal. 82.)