Majority
p. 61[No. 13132. In Bank. August 1, 1889.] J. B. BELLEGARDE, Respondent, v. SAN FRANCISCO BRIDGE COMPANY, Appellant.
Headnote
Appeal—Failure to File Undertaking in Time—Dismissal. —The failure to file an undertaking on appeal within the time limited therefor renders the attempted appeal ineffectual. In such a case, the respondent cannot have the attempted appeal dismissed.Appeal from a judgment of the Superior Court of the city and county of San Francisco.
Motion to dismiss appeal. The facts are stated in the opinion of the court.
O'Brien, Morrison & Daingerfield, for Appellant.
J. D. Sullivan, and Henry McCrea, for Respondent.
This cause is before us upon a motion of respondent to dismiss the appeal from the judgment for failure to file the transcript within the time prescribed by rule 2 of this court.
But the certificate of the clerk shows that no appeal has ever been taken,—the notice of appeal having been given January 7, 1889, and no undertaking on appeal having been filed until January 28, 1889. In such a case the rule heretofore seems to have been to refuse to
p. 62
hear the party who claims to have appealed, and to refuse to “ dismiss,”—there being, really, nothing to dismiss. (B iagi v. Howes, 63 Cal. 384 ; Reed v. Kimball, 52 Cal. 325 .)
The motion to dismiss is denied.
Sharpstein, J., Paterson, J., Works, J., and Beatty, C. J., concurred.
Rehearing denied.
Cases cited
- Biagi v. Howes 63 Cal. 384 p. 62
- Reed v. Kimball 52 Cal. 325 p. 62