Opinion
[Syllabus Material] Rehearing Denied 24 Cal. 94 at 97.
Appeal from the District Court, Third Judicial District, Alameda County.
Buffendeau, the plaintiff, recovered judgment in the Court below, and the defendant appealed.
COUNSEL:
B. W. Brooks, for Appellant.
J. C. Cary, for Respondent.
JUDGES: Currey, J.
OPINION
CURREY, Judge
By the Court, Currey, J., on petition for rehearing.
The defendant, by his counsel, has applied to this Court to grant a rehearing of the motion heretofore made on behalf of plaintiff to dismiss the appeal in this case. This application is founded on the third section of the Act of 1861, entitled " An Act to regulate appeals in this State," which reads as follows: " No appeal shall be dismissed for insufficiency of the notice of appeal or undertaking thereon; provided, that a good and sufficient undertaking, approved by a Judge of the Supreme Court, be filed in the Supreme Court before the hearing upon motion to dismiss the appeal, and upon payment of such reasonable costs as the Court may adjudge; provided, that the respondent shall not be delayed, but may move when the cause is regularly called for the disposition or dismissal of the same, if such undertaking be not given." (Laws of 1861, p. 589.)
It is insisted by defendant's counsel that this Court has not the power to dismiss an appeal for insufficiency of the notice, and for that reason the judgment of dismissal should be vacated and the cause restored to the calendar. The section of the Act of 1861 above cited presupposes the existence of a notice of appeal, to which the word insufficiency stands in qualifying relation. The question of the insufficiency of the notice was not involved in the determination of the motion to dismiss the appeal; but the point made by the party moving, and which was considered by the Court, was that the proceedings which the 337th section of the Practice Act requires shall be taken in order to constitute an appeal, had not been taken. The construction which the counsel claims for the Act of 1861 would give it the effect to abrogate the conditions on which the fact of a subsisting appeal must of necessity depend. In our view, the Act of 1861 was intended to relieve appellants from the results which, without it, would be likely to happen in consequence of defects of form and deficiencies in substance apparent on the face of notices of appeal; but we cannot find in this Act any authority for excusing, in any case, performance of the acts necessary to effect an appeal in accordance with the provisions of the 337th section of the Practice Act--viz: the filing and service of notice--and without the performance of which acts the appellate Court could not acquire jurisdiction.
The petition for a rehearing must be denied.
Mr. Justice Shafter, having been of counsel in another case involving a like question, did not sit on the trial of this.
Sawyer, J., expressed no opinion.