In re Estate of Heydenfeldt, 119 Cal. 346

In re Estate of Heydenfeldt

119 Cal. 346 | Cal. | 1897

Lead Opinion

McFARLAND, J.

This cause is now before us on a motion to dismiss the appeal of Henrietta Heydenfeldt, upon the ground that said appeal was taken from three separate and distinct orders, and that only one undertaking on said appeal has been given and filed by said appellant.

The motion of appeal states that the appellant appeals “from each of the orders given and made herein granting the petitions of Zeila 0. Hellings for payment of mortgage, and particularly from the order or decree heretofore, on or about June 1, 1896, filed herein, directing the redemption and exoneration of mortgaged premises upon the petition of Zeila 0. Hellings; and also from the order made on or about February 17, 1896, denying to said Henrietta Heydenfeldt the right to participate in the proceedings upon the hearing of said petitions of Zelia O. Hellings for payment of mortgage; and from the order made on or about March .14, 1896, striking from the files the answers of Henrietta Heydenfeldt to said petitions of Zeila O. Hellings; and from the whole and each and every part of each and every of the said orders and decree.” The undertaking recites that Henrietta Heydenfeldt has appealed to the supreme court from the various orders mentioned in said notice of appeal, and the sureties undertake “that the said appellant will pay all damages and costs which may be awarded against her on said appeal or on a dismissal thereof, not exceeding three hundred ($300) dollars.”

*348It has been established by a long line of decisions of this court that an undertaking on appeal, such as the one given in this case, is entirely invalid for any purpose. (People v. Center, 61 Cal. 191; Corcoran v. Desmond, 71 Cal. 100, and previous cases there cited; Home etc. Associates v. Wilkins, 71 Cal. 626; McCormick v. Belvin, 96 Cal. 182; Centerville etc. Co. v. Bachtold, 109 Cal. 111; Spreckels v. Spreckels, 114 Cal. 60.) In the Spreckels case, supra, the facts differed materially from those in the case at bar.

Appellant contends that only one of the three orders appealed from is an appealable order, and that therefore the bond should.be held as applicable to that order alone which is appeal-able. But where a motion to dismiss an appeal is not upon the ground that the thing appealed from is not appealable, but upon, the ground that there has not been a compliance with the statutory provision prescribing the mode of talcing an appeal, there we cdnnot consider whether either of the orders appealed from is appealable. This contention was disposed of adversely to appellant’s views in Centerville etc. Co. v. Bachtold, supra. In that case the court said: “A motion to dismiss the appeal upon the ground that the order is not appealable assumes that the appeal has been perfected, and that there is before this court a proper authenticated record of the action of the superior court..... On the other hand, whether an appeal has been perfected is a question of fact depending upon the proceedings subsequent to the entry of the order of the court below. When a motion to dismiss an appeal is made upon this ground, the character or nature of the order appealed from is not involved, and the action of the court is limited to determining whether the steps taken for the appeal are in compliance with the statute prescribing the mode of taking an appeal.”

Appellant has filed a new undertaking on appeal, approved by one of the justices of this court, and contends that such new' undertaking supplies the want of a proper undertaking at the. time the appeal was taken, under section 954 of the Code of Civil Procedure. But that was the precise contention that was made in Home etc. Associates v. Wilkins, supra, and in Centerville etc. Co. v. Bachtold, supra. In the former case the court, having held that in a case where there were appeals from two or-*349tiers and only one undertaking filed which did not distinctly refer to either appeal, “the undertaking when filed is no undertaking at all,” said: “An application is made to this court by appellant to be allowed to file the proper undertaking under section 954 of the Code of Civil Procedure. The section referred to 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. (Hastings v. Halleck, 10 Cal. 31.)” The same ruling was made in Centerville etc. Co. v. Bachtold, supra.

The motion to dismiss the appeal is granted, and the appeal is dismissed.

Harrison, J., Van Fleet, J., and Garoutte, J., concurred.

Dissenting Opinion

BEATTY, C. J., dissenting.

I dissent. In my opinion but one of the orders was appealable, and there was but one appeal. Besides, I am unable to distinguish this case from SprecJcels v. SprecJcels, supra, in which a bond similarly defective was held to be amendable, and this bond has been amended.

Behearing denied.