81 Cal. 244 | Cal. | 1889
The appellant Kerkow gave notice of an appeal from the judgment,- and from the order denying him a new trial. He gave an undertaking on appeal from the judgment alone. No reference was made in the undertaking to the order denying the new trial, or the appeal therefrom. After the time provided by law for giving the undertaking on appeal in the court below, the said appellant applied to the chief justice to approve an undertaking to be filed in this court. The undertaking was approved by the chief justice, and subsequently filed. The respondent moves to dismiss the appeal, on the ground that no bond was filed in time in the court below, and no attempt having been made to file such bond, the one approved by the chief justice and filed in this court could not be effective.
An appeal is taken by serving and filing a notice of appeal within the time prescribed by law. But the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed, or a deposit of money be made, or the undertaking be waived by the adverse party in writing. (Code Civ. Proc., sec. 940.)
The giving of - the undertaking is necessary to confer jurisdiction on this court, and must be given within the time prescribed by the code. But section 954 of the code provides: “ If the appellant fails to furnish the
requisite papers, the appeal may be dismissed; but no appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient undertaking, ap
This section does not authorize the giving of an undertaking in this court in the first instance, but when an insufficient one has been given in the court below, the defect may be remedied by filing- a new undertaking here. The giving of the new bond is in the nature of an amendment to a defective proceeding. In this case no bond was given on the appeal from the order denying a new trial, nor was there any attempt to do so. For these reasons, the bond approved and filed in this court was ineffectual for any purpose, and the appeal must be dismissed. No amendment of the undertaking could be allowed, because none had been given, and there was nothing to amend. The precise question has been decided by this court in a case in which leave was asked to file an undertaking here. The court said: “The section referred to [section 954J 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.” (Home and Loan Associates v. Wilkins, 71 Cal. 626; see also Berniaud v. Beecher, 74 Cal. 617; Wood v. Pendola, 77 Cal. 82.)
The appellant contends that as his appeal from the judgment was taken within sixty days after the entry of judgment, the statement on motion for a new trial may be looked to for the purpose of determining whether or not the decision is supported by the evidence. The code provides: “But 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, subd. 1.)
This appeal was taken within sixty days after the entry of the judgment, but not within sixty days after its rendition. For that reason we are precluded, by the express language of the statute, from considering the question whether the decision is supported by the evidence. It is contended that, under the earlier statutory provisions limiting the time for taking appeals, the time commenced to run from the rendition of the judgment, and not from its entry, and that the code has been so amended as to make the time commence to run at the latter date, and that as the appeal cannot be taken until after the entry of the judgment, that part of the section we are considering should be so construed as to make it relate to the same time. But we know of no reason, or any rule of law, that would warrant us in changing one portion of the code by judicial construction because the legislature has changed another by law. Beside, there is no apparent reason why the limitation of the right to use the statement for the purpose named should not be enforced under the present provisions of the code as well as under the former provision. The party appealing can secure the right to use the statement by prosecuting his appeal from the judgment within the time fixed. If he fails in this, he is not without his remedy; he still has his motion for a new trial, which, if properly prosecuted, furnishes him the same remedy. The evil of our system .of practice is, that it gives too many remedies, and attorneys, by hesitating which one to pursue, frequently lose them all. This is one of the many cases in which this has occurred.
The only other point urged in the appellant’s brief is, that the findings do not support the judgment. We have carefully examined the findings, and hold them to be entirely sufficient, and that they support the judgment rendered.
Appeal from order denying new trial dismissed, and judgment affirmed.
Paterson, J., and Fox, J., concurred.
Hearing in Bank denied.
