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Robinson v. Templar Lodge No. 17

114 Cal. 41 Court Department Two. Decision date 1896-08-14 Docket S. F. No. 488 English

Delivered by McFarland, J.

Contents

Majority

p. 41
[S. F. No. 488.
Department Two.
August 14, 1896.]
THOMAS B. ROBINSON, Appellant, v. TEMPLAR LODGE NO. 17, I. O. O. F. OF CALIFORNIA, Respondent.

Headnote

Appeal—Dismissal—Failure to File Undertaking.—An appeal will be dismissed without prejudice to another appeal where there was a failure to file an undertaking on the appeal as required by law.
Id.—Service and Filing oe Notice—Computation of Time to File Undertaking-Exclusion op Sunday. —A notice of appeal may be served before it is filed, and the statute prescribes no limit of time for its filing; and the fact that a notice of appeal was served six days before the notice and undertaking were filed is not ground for dismissal of the appeal, where it appears that the fifth day after the service fell upon Sunday, in whichK case the appellant has the whole of the following day in which to file the undertaking.
Motions in the Supreme Court to dismiss appeals from a judgment of the Superior Court of the City and County of San Francisco.
The facts are stated in the opinion of the court.
George D. Collins, for Appellant.
Davis LouderbacTc, for Respondent.

The motion of respondent to dismiss the appeal, notice of which was served and filed in the superior court on the fifth day of November, 1895, upon the ground that no undertaking on said appeal was ever filed, is granted, and said appeal is dismissed without prejudice to another appeal.

Respondent has also made a motion to dismiss the appeal, the notice of which appears on page 127 of the printed transcript, upon the grounds that the notice was served on December 31, 1895, and that neither the notice nor the undertaking was filed until January 6, 1896. These grounds are not tenable. The notice of appeal may be served before filing, and the code does not prescribe any particular time after service within which it must be filed (Noonan v. Nunan, 76 Cal. 44 ;

p. 42
Galloway v. Rouse, 63 Cal. 280 ; Boyd v. Burrell, 60 Cal. 280 ; Code Civ. Proc., sec. 940); but the undertaking must be filed within five days after the service of the notice of appeal. In this cáse the service was on December 31, 1895; the fifth day of January, 1896, was Sunday, and thus appellant had until the 6th of January to file his undertaking. The said motion to dismiss said second appeal, the notice of which appears on page 127 of the transcript, is denied.

Henshaw, J., and Temple, J., concurred.

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