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Reed v. Kimball

Supreme Court of California
Jul 1, 1877
52 Cal. 325 (Cal. 1877)

Opinion

         Appeal from the District Court of the Twenty-second Judicial District, County of Mendocino.

         Judgment for the plaintiff for $ 908.57. The defendant undertook to appeal.

         COUNSEL

          Harrison & Lamar, for the motion.

         McGarvey & Carothers, per contra.


         OPINION          By the Court:

         The respondent moves that the appeal be dismissed, because of the failure of the appellant to file the transcript within the time prescribed by the rules of this Court.

         It appears by the certificate of the Clerk of the Court in which the judgment was rendered, that on the 22nd day of March last a notice of appeal was served upon the attorney for the respondent, and that on the 5th day of April next thereafter an undertaking on appeal was filed in the Clerk's office. The Code of Civil Procedure (sec. 940) provides that " the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking is filed," etc.

         More than five days having intervened in this case between the service of the notice and the filing of the undertaking, the appeal utterly failed--became " ineffectual for any purpose " --and is not the subject of a motion to dismiss.

         For the reason, then, that no appeal appears to be pending, the motion is denied.


Summaries of

Reed v. Kimball

Supreme Court of California
Jul 1, 1877
52 Cal. 325 (Cal. 1877)
Case details for

Reed v. Kimball

Case Details

Full title:REED v. KIMBALL

Court:Supreme Court of California

Date published: Jul 1, 1877

Citations

52 Cal. 325 (Cal. 1877)

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