14 Mont. 354 | Mont. | 1894
In this case the respondents move to dismiss the appeal on two grounds: 1. Because it appéars that there is an appeal from the judgment, and also an appeal from an order denying a motion for new trial, and there is but one cost bond given; 2. Because the notice of appeal from the judgment was not served or filed within one year after the entry of judgment.
The first ground of the motion to dismiss is not well taken. It has been the universal practice in this state, and in the late territory, in appealing from a judgment and an order, where such appeal is consolidated in one record, to give but one cost bond. The matter has never been before this court for adjudication, but it is held in California that the giving of one bond in such an appeal is sufficient. The supreme court of California said, in the case of Chester v. Bakersfield etc. Assn. 64 Cal. 42: "The practice of filing but one undertaking where appeals are taken, as in this case, both from the judgment and order denying new trial, is about as well settled as any question of that kind can be, and we do not think that it should now be treated as an open one.” (See, also, Hayne on New Trial and Appeal, § 211, p. 645.)
It appears that the appeal from the judgment was not taken within one year after the judgment was entered. That appeal must therefore be dismissed, and it is so ordered. Appellants