70 P. 180 | Cal. | 1902
Motions are made to dismiss the appeals herein upon the ground that no undertaking upon appeal has been filed in either of the cases, and that no order of the trial court has been made dispensing with the giving of them.
Section 1058 of the Code of Civil Procedure provides that "In any civil action or proceeding wherein the state, or the people of the state, is a party plaintiff, or any state officer, in his official capacity, or in behalf of the state, or any county, city and county, city, or town, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the state, or the people thereof, or any officer thereof, or of any county, city and county, city, or town." Section 946 of the same code provides that, "The court below may, in its discretion, dispense with or limit the security required by this chapter, when the appellant is an executor, administrator, trustee, or other person acting in another's right." It is here admitted that the order dispensing with the required undertaking was not obtained. A dismissal of these appeals is therefore inevitable, unless they can be supported *374
under section 1058 of the Code of Civil Procedure. In Lambersonv. Jeffords,
Nor can we perceive in the stipulation of the appellees extending the time of the appellants for the filing of their briefs, and for like purposes, anything which amounts to a waiver or an estoppel against them of their right to press this motion. Section 940 of the Code of Civil Procedure declares that "the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed, . . . . or the undertaking be waived by the adverse party in writing." There was here no express waiver in writing, and there was nothing in the stipulations entered into to indicate any attempt to waive. (Little v. Jacks,
For the foregoing reasons the appeals are dismissed.
Temple, J., McFarland, J., Garoutte, J., Van Dyke, J., and Harrison, J., concurred. *376