285 P. 696 | Cal. | 1930
Petition for writ of mandate directed to the respondent court and to the Honorable Caryl M. Sheldon, the judge of said court, commanding said court to settle and allow a proposed statement on appeal filed by petitioners in said court. *53
Petitioners were on the twenty-second day of March, 1929, convicted in the Municipal Court of the City of Los Angeles of the crime of petty theft. On the same day they each gave oral notice of appeal from the judgment of conviction entered against them on said twenty-second day of March, 1929. The petitioner Love, on March 30, 1929, and the petitioner Keaton, on the first day of April, 1929, filed written notice of appeal from said judgment, and on April 3, 1929, petitioners served and filed in said court their proposed statement on appeal from said judgments. Demand has been made upon the respondent court to settle said statement, but respondent has refused to settle said statement or to take any action thereon.
The ground upon which the respondent court bases its refusal to settle said statement is that while said statement was filed within five days after the giving of petitioners' written notices of appeal, it was not served or filed within five days after the giving of their oral notice of appeal. This same point was raised and decided adversely to respondent's contention by this court in the recent case of Hansen v. Municipal Court,
These cases undoubtedly hold, as contended by respondent, that there cannot be two appeals from the same judgment and that where the appellant has perfected a valid appeal from a judgment such appeal vests the appellate court with jurisdiction of the case, and that any proceedings thereafter taken by appellant to take a separate or second appeal from said judgment are ineffectual for any purpose. These authorities, in our opinion, contain correct statements of the law upon the right of a party to take two separate appeals from a judgment against him. We think, however, that they are not applicable to the facts in the present action.
[1] While the petitioners gave oral notice of appeal they did not serve or file any statement on appeal within five days after giving said notice of appeal as provided by section *54
It is contended by respondent that these views are in conflict with those expressed in the cases of In re Bathurst,
The plain and unequivocal meaning of this language is that the failure to file the statement on appeal within the five-day period renders the notice of appeal of no effect and the judgment appealed from may be enforced as if no attempt had been made to perfect an appeal therefrom. It would be unnecessary to make a motion to dismiss the appeal in either the trial or appellate court for the reason that no appeal had been perfected and whatever proceedings in the shape of an appeal had been taken were "deemed dismissed." In re Bathurst,
In our opinion a peremptory writ of mandate should issue as prayed for, and it is so ordered.
Langdon, J., Richards, J., Shenk, J., Seawell, J., and Preston, J., concurred.