Majority
p. 561[S. F. No. 3321. Department Two. November 7, 1902.] GOTTLIEB KLINGLER, Respondent, v. HENDERSON & BLOCK, Appellants.
Headnote
Appeal—Dismissal—Failube of Sureties to Justify.—After an undertaking on appeal has been filed in due form of law, the failure of one of the sureties to justify after exception taken to the sufficiency of the sureties does not establish a failure to perfect the appeal, and is not ground for a dismissal of the appeal.MOTION to dismiss "an appeal from a judgment of the Superior Court of Santa Cruz County. L. F. Smith, Judge.
H. R. Osborne, and B. K. Knight, for Appellants.
Carl Lindsay, and Martin & Gallagher, for Respondent.
Motion to dismiss the appeal. The only ground of the motion stated in the notice is the general one, that “appellants have failed to perfect their appeal in said action within the time alloived by law.’’ The certificate of
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the clerk shows that appellants, within the proper time, served and filed a notice of appeal, and filed “an undertaking on appeal in due form of law.” The present motion is based on the fact that respondent excepted to the sureties on the undertaking, and that one of them failed to justify; but this, as has been frequently held by this court, is not a ground for dismissing an appeal. The certificate does not show any other ground for holding that appellants have “failed to perfect their appeal.”
The motion to dismiss the appeal is denied.