Swortfiguer v. White, 66 P. 81

Swortfiguer v. White

66 P. 81 | Cal. | 1901

BEATTY, C. J.

The superior court entered a judgment dismissing this action as to all the defendants. From that judgment the plaintiff perfected an appeal. Subsequently to the appeal the superior court attempted to modify its judgment by limiting the dismissal to the defendant White, but, having lost jurisdiction of the cause by reason of the appeal, *780its modified judgment was void. The plaintiff, however, gave notice of an appeal from the modified judgment, and has filed a printed transcript here, which contains only this second notice. On motion of respondent the court in department 2 (ante, p. 778, 66 Pac. 80) has dismissed the second (attempted) appeal, upon the ground that when the notice was given a valid appeal from the only judgment in the case had already been perfected. Pending that motion to dismiss, the appellant moved in bank for leave to amend the transcript on file, by inserting therein her first and valid notice of appeal, thus converting it into a record, upon which she may secure a review of the judgment as originally rendered. The respondents oppose the motion, but only upon grounds too technical to prevail against the consideration that the plaintiff, having a valid appeal and a printed transcript of the record on file, ought not to be deprived of a hearing by the harmless mistake she made in seeking to prosecute the second appeal. The appellant is granted leave to amend the record by adding a copy of the first notice of appeal, with a certificate as to the undertaking given in that connection.

We concur: Temple, J.; McFarland, J.; Van Dyke, J.