Wittram v. Crommelin
California Supreme Court
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The motion was made to dismiss the appeal, on the ground that the appellant had failed to file the transcript within the time required by rule 2 of the Supreme Court. The judgment appealed from was rendered in favor of the defendant for a sum of money.
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Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The motion was made to dismiss the appeal, on the ground that the appellant had failed to file the transcript within the time required by rule 2 of the Supreme Court. The judgment appealed from was rendered in favor of the defendant for a sum of money. In order to perfect his appeal and to stay execution of the judgment, the appellant filed an undertaldng as required by the Code of Civil Procedure, io the sufficiency of the sureties, on which the respondent excepted.…
1Opinion of the CourtPaterson, J.
— The failure of the sureties on an undertaking on appeal to justify after an exception to their pecuniary sufficiency has been taken does not render the appeal ineffectual. (Hill v. Finnigan, 54 Cal. 311.) It merely operates to avoid the stay of execution of the judgment appealed from. (Schacht v. Odell, 52 Cal. 449.)
The stipulation of respondent, therefore, extending the time for appellant’s sureties to justify is not a waiver of objection to any of the proceedings taken to effect the appeal. The notice of appeal was filed and served •on October 6, 1886. On the eleventh day of October,…
2Cases cited2 opinions
- Hill v. FinniganCalifornia Supreme Court · 1880
- Schacht v. OdellCalifornia Supreme Court · 1877
3Cited by3 opinions
- Swasey v. AdairCalifornia Supreme Court · 1890
- Miles v. JohansonIdaho Supreme Court · 1925
- St. Clair v. JoosCalifornia Court of Appeal · 1924