Williams v. Dennison — 86 Cal. 430

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Majority

p. 430

[No. 13987.

In Bank.

November 25, 1890.]

C. B. WILLIAMS, Respondent, v. E. F. DENNISON, Appellant.

Headnote

Appeal — Notice — Surplusage. — Where a notice of appeal recites that the appeal is taken from the judgment and order denying a new trial, “and from each and every order and judgment made and entered in said cause, ” the appeal will be treated as only an appeal from the judgment and order denying a new trial, and the last recital will be treated as surplusage.

Id.—■ Undertaking — Double Appeal. — One undertaking on appeal is sufficient where there is in the same notice and transcript an appeal from a judgment, with an appeal from an order denying a new trial, and the undertaking is in terms applicable to both appeals.

Motion to dismiss an appeal from the Superior Court of the city and county of San Francisco.

The notice of appeal stated that the appeal was taken from the judgment,— describing it and giving its date,— and “also from the order overruling the motion for a new trial, and from each and every order and judgment made and entered in said cause,” and the undertaking on appeal recited the appeal as stated in the notice.

B. McKinne, for Appellant.

J. C. Bates, for Respondent.

— The appeal in this case must be treated as an appeal from the judgment and order denying the motion for new trial. Under the notice, nothing will come under review on the hearing which would not be subject to review if the notice had omitted the words “ and from each and every order and judgment made and entered in said cause.”

Treating the appeal as being from the judgment and the order denying the motion for new trial only, as we think it must be treated, and the same not being separately taken, the undertaking is sufficient in form and in substance. ( Chester v. Bakersfield T. H. Ass’n, 64 Cal.

Concurrence

p. 431

42 ; Corcoran v. Desmond, 71 Cal. 102 , 103.) The other cases cited in support of the motion to dismiss the appeal are not in point.

Motion to dismiss the appeal denied.

Sharpstein, J., McFarland, J., Paterson, J., and Thornton, J., concurred.

— I concur. The notice of appeal and undertaking are in bad form, and in some cases might render the appeal abortive; but there is nothing in the record here to which the unnecessary recitals therein can apply, except the appeal from the judgment and order denying a new trial. But while this mode of procedure is harmless in this instance, it should not be encouraged.