24 P. 377 | Cal. | 1890
Action to recover a broker’s commission for effecting a sale of the property known as the “Arlington Hotel,” in the city of Santa Barbara. Verdict and judgment for plaintiff. Defendants appeal from the judgment. The record contains a bill of exceptions which, respondent contends, cannot, in the absence of a motion for a new trial, be looked into for the purpose of determining whether the evidence is sufficient to justify the verdict. Such was the rule under the practice prior to the adoption of the code, which contains the following provision: “An exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment”: Code Civ. Proc., sec. 939. The implication is that, if the appeal be taken within sixty days after the rendition of the judgment, such an exception may be reviewed: Balch v. Jones, 61 Cal. 236; In re Crowey, 71 Cal. 300-302, 12 Pac. 230. It is contended, however, that the appeal in this case was not taken within sixty days after the rendition of the judgment, because no undertaking on appeal was filed within that period of time. An appeal is taken when a notice of appeal is served and filed: Code Civ. Proc., sec. 940. The filing of an undertaking perfects an appeal, but is not a part of the taking in the statutory sense: Lowell v. Lowell, 55 Cal. 318.
J. We concur: McFarland, J.; Fox, J.; Paterson, J.; Works,