Hastings v. Halleck

10 Cal. 31 | Cal. | 1858

Burnett, J., delivered the opinion of the Court

Terry, C. J., concurring.

Motion to dismiss appeal. The notice of appeal was served June 11th, 1858, and the notice and undertaking filed June 28th.

To constitute an appeal there are three things necessary: first, filing the notice; second, service of the same; and third, filing the undertaking. All these steps must be taken within the times limited by the statute. ’ If not so taken, there is no appeal perfected, and this Court has no jurisdiction of the case. (Bryan v. Berry, 8 Cal. Rep., 133 ; Franklin v. Renier, 8 Cal. Rep., 340 ; Whipley v. Mills, 9 Cal. Rep., 641.)

The three hundred and thirty-seventh section of the Code requires the filing of the notice, and a service of a copy upon the adverse party or his attorney. The service should be made after, or at the time of the filing of the notice; and before, or at the time of the filing of the undertaking. The three hundred and forty-eighth section of the Code requires the undertaking to be filed with.n five days after the notice of appeal is filed; and, by section three hundred and fifty-five, the respondent must except to the sufficiency of the sureties within five days after the filing of the undertaking. The period of five days can not be abridged by the error or negligence of the appellant; nor can the appellant, by serving a copy of the notice of appeal before the original is filed, keep the respondent continually watching the clerk’s office to see when it is done. These provisions of the Code are intended for the repose of parties, and must be strictly complied with.

In this case, the service of the notice of appeal was void, and there was no appeal perfected.

Motion to dismiss sustained.