15 Cal. 383 | Cal. | 1860
Field, C. J. and Baldwin, J. concurring.
In this case, the defendants move to dismiss the appeal, on the ground that no undertaking was filed within five days after the filing of the notice. The notice was filed on the third of February, 1859, and on the seventh the Court made the following order: “ On motion of attorney for plaintiffs, it is ordered by the Court that plaintiffs have the full period of twenty-five days, in which to file their undertaking on appeal, and that proceedings herein be stayed until that time.” It is contended that the effect of this order was to enlarge the time between the filing of the notice and the undertaking. If we did not consider ourselves bound by the provisions of the statute, we should be inclined to adopt this construction, as substantial justice would undoubtedly be promoted by it. But we think the undertaking must, in all eases, be filed within five days after the notice, and that the Court has no power to extend the time. The power to enlarge the time within which an act is required to be done, is expressly given in. certain cases; but this is not one of the cases in which the power is given, and upon the principle that expressio unius est exclusio alterius, the omission must be deemed to have been intentional, and the same effect must be given to
It follows that the motion must be granted and the appeal dismissed.
Ordered accordingly.