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Buckholder v. Byers

Supreme Court of California
Oct 1, 1858
10 Cal. 481 (Cal. 1858)

Opinion

         Motion to dismiss the Appeal.

         This is a motion to dismiss the appeal, on the ground that no undertaking has been filed since the appeal was taken. The undertaking was filed the 28th of April, 1858, whilst the notice of appeal was not filed until May 31st, 1858, more than a month afterwards.

         COUNSEL

          R. S. Mesick, for the Motion.

         G. N. Swezy, in Opposition.


         JUDGES: Field, J., delivered the opinion of the Court. Terry, C. J., and Baldwin, J., concurring.

         OPINION

          FIELD, Judge

         The motion must be granted. Until an appeal is taken, there is nothing to give effect to the undertaking. If an appeal could be rendered effectual by an undertaking filed one month previously, it might be by an undertaking filed at any time previously within a year. And the undertaking, if of sufficient amount, must operate, if at all, to stay proceedings, and it would thus often happen that a stay would be obtained for the entire period during which an appeal is allowed, and no appeal in fact be ever taken.

         The filing of the notice of appeal must precede the filing of the undertaking.

         Appeal dismissed.


Summaries of

Buckholder v. Byers

Supreme Court of California
Oct 1, 1858
10 Cal. 481 (Cal. 1858)
Case details for

Buckholder v. Byers

Case Details

Full title:BUCKHOLDER et al. v. BYERS

Court:Supreme Court of California

Date published: Oct 1, 1858

Citations

10 Cal. 481 (Cal. 1858)

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