In Duffy v. Greenebaum, 72 Cal. 157, it was held that the appellant did not obviate this defect in the undertaking by having inserted the provision in the undertaking to stay execution of the judgment.Summary of this case from Fay v. Costa
Appeal from a judgment of the Superior Court of the city and county of San Francisco, from an order refusing to vacate the same, and from an order refusing a new trial.
D. L. Smoot, and Charles Creighton, for Appellants.
O'Brien & Morrison, for Respondent.
JUDGES: In Bank. Thornton, J. Temple, J., Sharpstein, J., and Paterson, J., concurred. McFarland, J., dissenting.
Motion to dismiss appeal.
The opinion in Department Two is correct, and will stand as the opinion of the court.
We add, the requisition of an undertaking on appeal (of three hundred dollars) is clear and distinct (Code Civ. Proc., secs. 940, 941), and without this undertaking, it is declared "the appeal is ineffectual for any purpose." (Sec. 940.) The undertaking to stay execution is also prescribed and its requisites distinctly declared. (Code Civ. Proc., sec. 942.) It so happens that by the requirement of the statute (section last cited) the provisions of the undertaking on appeal are also, with other terms, to be inserted in the undertaking for a stay of execution. But the former is required for one purpose and the latter for a different purpose. It cannot be denied that the legislature had the power to enact the statute in the form which it bears. Now, when an undertaking is required to render an appeal effectual for any purpose, how can the contention be sound that since an undertaking prescribed for another purpose, i. e., for a stay, contains in it the same terms and conditions with others, as are to be inserted in an undertaking on appeal, that therefore the stay undertaking is sufficient for both purposes? The statute is one, and its various sections must be construed together, and it would be a singular conclusion that the legislature intended that an undertaking required for a declared purpose should operate to accomplish a different purpose, and that when it is expressly declared that it shall have no such effect. That would be to deduce of a declared intention a different intention, by implication that the legislature, when it declared one thing, meant another and different one. We cannot declare of a statute making in words an express declaration of its intent a different intent. When an intent is declared, there can be no implication of a different intent. "The express mention of one thing implies the exclusion of another." (Brown's Leg. Max. * 626, 6th Am. ed.)
In this case there is no undertaking on appeal, and the section of the Code (Code Civ. Proc., sec. 954) allowing an undertaking to be filed on the insufficiency of the undertaking filed has no application. (Biagi v. Howes , 63 Cal. 384.)
Motion to file an undertaking on appeal denied and the appeal is dismissed.
The following is the opinion of Department Two above referred to, rendered on the 6th of November, 1886:
The Court. -- Motion to dismiss an appeal. There is no three-hundred-dollar undertaking on appeal, as required by sections 940 and 941, Code of Civil Procedure. The undertaking closely follows section 942, Code of Civil Procedure, which prescribes the requisites of the undertaking to stay execution. We are therefore of opinion that the undertaking must be construed to be given for the purpose stated in the undertaking; that is, to stay execution. We cannot construe it to include the three-hundred-dollar undertaking on appeal. Motion granted.
McFarland, J., dissenting. I dissent. The undertaking provided for in section 942 has all the conditions of an undertaking on appeal, and when given, in my opinion, renders the undertaking mentioned in section 941 unnecessary.