Majority
p. 356STEWART v. BURBRIDGE et al.[1] Court of Appeal, Second District; November 23, 1908. 101 Pac. 419.
Headnote
Appeal.—Where No Undertaking has Been Filed to perfect an appeal from an order denying a'motion for a new trial, the appeal will be dismissed.Appeal—Notice and Undertaking.—Where a notice of appeal from a judgment was duly served on the adverse party, and the notice and an undertaking to perfect the appeal were on the same day filed in the trial court, the appeal was properly taken.
Action by C. P. Stewart against O. H. Burbridge and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. On motion to dismiss. Appeal from order dismissed, and motion to dismiss appeal from judgment denied.
Samuel Barnes Smith for appellants; Woodruff & McClure for respondent.
It appearing to the court that no undertaking has been filed to perfect the appeal taken from the order denying defendants’ motion for a new trial in the above-entitled action, it is ordered that the said appeal be dismissed.
It further appearing to the court, from a duly certified copy thereof on file herein, that a notice of appeal from the
p. 357
judgment was served on plaintiff and filed in the superior court, and an undertaking to perfect the same filed on the same day, to wit, on the seventeenth day of July, 1908, it is ordered that the motion to dismiss the appeal from the judgment is hereby denied.