Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
Moses G. Cobb, and C. Wittram, for Appellant.
B. McKinne, for Respondent.
JUDGES: Paterson, J. McKinstry, J., and Temple, J., concurred.
OPINION
PATERSON, Judge
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, 1886, an undertaking on appeal was filed, and on the 14th of the same month the respondent served and filed exceptions to the sufficiency of the sureties. Since that time the justification of said sureties has been postponed from time to time by stipulation of counsel for the respective parties. No transcript has been filed herein, and the clerk of the Superior Court certifies "that the appellant has not requested the clerk to certify to a correct transcript of the record in said cause, and that no statement or bill of exceptions on appeal has been filed herein by plaintiff."
For this failure to file the transcript within the forty days prescribed by the rule the motion to dismiss must be granted.
Appeal dismissed.