Wood v. Pendola

Opinion — Paterson

Paterson, J.

The notice of appeal specifies that the defendant appeals from the judgment rendered against him on September 27, 1887, and also from the order made January 13, 1888, denying defendant’s motion for a new trial. In the undertaking on appeal no reference is made to • the order. It recites simply that “ the said *83defendant has appealed to the supreme court of the state of California from said judgment, and from the whole thereof.” Section 954 of the Code of Civil Procedure 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, approved by a justice of - the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal.” The motion to dismiss was submitted at the May term, in Sacramento, upon briefs to be thereafter filed. Several weeks thereafter another undertaking was filed, but it has never been approved by a justice of the supreme court. Therefore, if the undertaking be considered as simply irregular and insufficient under section 954, supra, the failure to file a good and sufficient undertaking within the time allowed by that section, and to have indorsed thereon the approval of a justice of this court, renders the appeal ineffectual. The appeal from the order denying the new trial is dismissed.

Searls, C. J., McFarland, J., Sharpstein, J., Thornton, J., and McKinstry, J., concurred.