26 Mont. 50 | Mont. | 1901
delivered the opinion of the court.
The respondent moves the dismissal of the purported appeal from the order denying the motion for a new trial for the reason that an undertaking to effectuate the appeal was not filed with the clerk of the district court wherein the action was tried.
From the record it appears that on February 21,1900, the appellants filed and served their notice of appeal from a judgment entered September 30, 1899, and from an order denying their motion for a new trial, entered February 7, 1900, and that they filed an undertaking to perfect the appeal from the j'udgment. The undertaking made no reference whatever to the order refusing a new trial, nor has there been filed with the clerk of the court below any undertaking on appeal from such order. It does not appear that a deposit was made in lieu of the undertaking required, nor is it shown that the respondent waived the giving of such an undertaking.
In the absence of a waiver or of a deposit of money, to1 perfect an appeal the undertaking must be filed within the time limited by the statute; an omission in this regard renders the attempted appeal wholly ineffectual. (Hines v. Carl, 22 Mont. 501, 57 Pac. 88.) Upon the authority of Hurley v. O’Neill, 24 Montana, 293, 61 Pacific Reporter, 658, the motion must be granted.
On October 18, 1901, and before the hearing upon this motion, the appellants filed with the clerk of this court an under
Tbe appeal from tbe order denying the motion for a new trial is dismissed for want of jurisdiction.
Dismissed.