Home & Loan Associates v. Wilkins — 71 Cal. 626

Majority

p. 626

[No. 11592.

Department Two.

January 31, 1887.]

HOME AND LOAN ASSOCIATES, Respondent, v. JOHN H. B. WILKINS et al. CHRISTINE CHILDS et al., Appellants.

Headnote

Appeals prom Distinct Orders—One Undertaking on Appeal—Dismissal — Piling New Undertakings. — Appeals taken from two distinct orders are each ineffectual and will he dismissed, when only one undertaking on appeal is filed, which fails to designate to which of the appeals it was intended to apply. In such a case, the appellant is not authorized, under section 954 of the Code of Civil Procedure, to file new undertakings.

Appeal from an order of the Superior Court of the city and county of San Francisco- vacating a prior order refusing a writ of assistance, and from an order granting a writ of assistance.

Motion to dismiss appeals. The facts are -stated in the opinion -of the court.

E. A. & Q. E. Lawrence, for Appellants,

J. R. Brandon, for Respondent.

Motion to dismiss appeals.

In this case appellant took appeals from, two orders, and filed one undertaking on appeal not distinctly referring to either appeal. The language used in the undertaking filed recites only - one appeal without distinguishing which of the two appeals was referred to. The undertaking so filed is no undertaking at all. It is so ambiguous that it must be regarded as if none had been filed. (People v. Center, 61 Cal. 191 ; Corcoran v. Desmond, ante, p. 100.)

An application is made to this court by appellant to be allowed to file the proper undertakings under section 954, Code of Civil Procedure. The section referred to does not authorize it. It only authorizes a new undertaking when the one filed is insufficient. But in this

p. 627

case there has really been none filed. To allow new ones to be filed would be in effect to permit a new appeal to be perfected after the time fixed by law. (Hastings v. Halleck, 10 Cal. 31 .)

Application to file other undertakings denied, and the appeals dismissed.

McFarland, J., and Sharpstein, J., concurred.

Hearing in Bank denied.

Cases cited

People v. Center 61 Cal. 191 Cal. 1882-07-28 p. 626
Hastings v. Halleck 10 Cal. 31 Cal. p. 627