Tevis v. O'Connell
California Supreme Court
Appeal from the Fourth Judicial District, County of San Francisco. On motion of respondent, based on a certificate of the Clerk of the District Court, the appeal was, on the fourth of March, 1863, dismissed.
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Appeal from the Fourth Judicial District, County of San Francisco. On motion of respondent, based on a certificate of the Clerk of the District Court, the appeal was, on the fourth of March, 1863, dismissed. Subsequently, during the same term, appellant moved on affidavit to reinstate the appeal, and in opposition to the motion, respondent showed by the certificate of the Clerk of the District Court that the sureties upon the appeal bond had been excepted to and had justified, not in San Francisco County, but before the County Judge of Contra Costa County, at Martinez.
1Opinion of the CourtCope, J.
Field, C. J. concurring.
The defendant moves to reinstate the appeal in this case, which was dismissed for failure to prosecute. The plaintiff shows, in opposition to the motion, that in fact no appeal has been taken, as the sureties upon the undertaking were excepted to, and justified before a County Judge of a county different from that in which the judgment was rendered. This we regard as a valid answer to the motion; the case of Roush v. Van Hagen (18 Cal. 668) settles the construction of the statute.
*513The motion is denied.
Subsequently, appellant petitioned for a rehearing, and offered to…
2Cases cited1 opinion
- Roush v. Van HagenCalifornia Supreme Court · 1861
3Cited by1 opinion
- Calderwood v. TevisCalifornia Supreme Court · 1863