Lower v. Knox
California Supreme Court
Appeal from the District Court of the Fourth Judicial District, County of San Francisco. The judgment in this case was rendered on the thirtieth of May, 1857, and the motion for a new trial was denied on the twenty-fourth of the following October. On the twenty-fourth of this last month, October, the defendant appealed from both the judgment and order, and on the same day filed his undertaking. To the sufficiency of the sureties on this undertaking, the plaintiff excepted.
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Appeal from the District Court of the Fourth Judicial District, County of San Francisco. The judgment in this case was rendered on the thirtieth of May, 1857, and the motion for a new trial was denied on the twenty-fourth of the following October. On the twenty-fourth of this last month, October, the defendant appealed from both the judgment and order, and on the same day filed his undertaking. To the sufficiency of the sureties on this undertaking, the plaintiff excepted. The defendant then gave notice of his justification before the clerk of the Court below on the second of ¡November, 1857,…
1Opinion of the Court
Field, J., after stating the facts of the case, delivered the opinion of the Court
2ConcurrenceTerry, C. J.
The motion to dismiss must be granted. The failure of the sureties to justify left the first appeal, by the express terms of *481the statute, as though no undertaking had been given, and ineffectual for any purpose. (Practice Act, § 348 and § 355, as amended in 1854.)
The clerk very properly refused to take the justification of the sureties before the last hour stated in the notice. The defendant should have designated an hour at which he would have been present with his sureties, and he could not, by his failure to…
3Cited by3 opinions
- Sharon v. SharonCalifornia Supreme Court · 1885
- Burdge v. Gold Hill & Bear Water Co.California Supreme Court · 1860
- Williams v. RiceNevada Supreme Court · 1878