Garibaldi v. Garr — 97 Cal. 253

Majority

p. 253

[No. 19079.

Department Two.

January 31, 1893.]

GIOVANNI GARIBALDI, Appellant, v. T. W. GARR, Road-overseer, Respondent.

Headnote

Appeal — Dismissal — Failure to File Transcript — Affirmance — Second Appeal. — The dismissal of an appeal from a judgment because of a failure by the appellant to file the transcript within the time prescribed by rule 2 of the supreme court is, in effect, an affirmance of the judgment, if the order of dismissal does not expressly provide that it is made without prejudice to the right of the appellant to take another appeal; and a second appeal from the same judgment will he dismissed.

Motion to dismiss an appeal from a judgment of the Superior Court of Los Angeles County.

The facts are stated in the opinion of the court.

A. B. Hotchkiss, for Appellant.

James McLachlan, District Attorney, B. M. Marble, and Waldo M. York, for Respondent.

This is an appeal by the plaintiff from a judgment in favor of the defendant. This is the second appeal plaintiff has taken from the same judgment. The former appeal was dismissed by this court on April 12, 1892, for fáilure to file the transcript within the time prescribed by rule No. 2, and the order of dismissal did not expressly provide that it was made without prejudice to the right of defendant to take another appeal. This being so, the dismissal of the former appeal was in its effect an affirmance of the judgment. (Code Civ. Proc., sec. 955.)

The order submitting this case for decision upon the merits will be set aside, and the motion of respondent to dismiss the appeal granted.

Appeal dismissed.

Beatty, C. J., and McFarland, J.,.concurred.