Majority
p. 481BUCKHOLDER et al. v. BYERS. R. S. Mesick for the motion. G. N. Swezy in opposition.
Headnote
The filing of a notice of appeal must precede the filing of the undertaking on appeal. Until an appeal is taken, there is nothing to give effect to the undertaking.Motion to dismiss the Appeal.
This is a motion to dismiss the appeal, on the ground that no undertaking has been filed since the appeal was taken. The undertaking was filed the 28th of April, 1858, whilst the notice of appeal was not filed until May 31st, 1858, more than a month afterwards.
Terry, C. J., and Baldwin, J., concurring.
The motion must be granted. Until an appeal is taken, there is nothing to give effect to the undertaking. If an appeal could be rendered effectual by an undertaking filed one month pre
p. 482
viously, it might be by an undertaking filed at any time previously within a year. And the undertaking, if of sufficient amount, must operate, if at all, to stay proceedings, and it would thus often happen that a stay would be obtained for the entire period during which an appeal is allowed, and no appeal in fact be ever taken.
The filing of the notice of appeal must precede the filing of the undertaking.
Appeal dismissed.