Opinion
Motion to dismiss an appeal from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Waldo M. York, Judge.
COUNSEL:
Blanton Duncan, in pro. per ., for Appellant.
White & Monroe, and Henry T. Gage, for Respondent.
JUDGES: In Bank. Temple, J. Harrison, J., Henshaw, J., Van Fleet, J., Beatty, C. J., McFarland, J., and Garoutte, J., concurred.
OPINION
TEMPLE, Judge
This is a motion to dismiss the appeal on the following grounds: 1. That no undertaking on appeal has been filed as required by section 940 of the Code of Civil Procedure, nor as required by sections 941 and 954 of the Code of Civil Procedure; 2. The undertakings do not allude to the appeal from the order denying a new trial; and 3. The undertakings purport to be in a different action and not in this case.
The undertaking filed is as follows:
" Whereas, the plaintiff in the above-entitled action, Blanton Duncan v. The Times-Mirror Co ., appeals to the supreme court of the state of California from judgment made and entered against plaintiff in said action in the said superior court in favor of the defendant in said action on the day of March, 1895, for one hundred and eighty five-100 dollars costs of suit, and one hundred dollars attorney's fee;
" Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, Mary T. Duncan & F. N. Myers, of Los Angeles county and state of California, do hereby jointly and severally undertake and promise, on the part of appellant, that the said appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound.
" And, whereas, the appellant, Blanton Duncan, is desirous of staying the execution of the defendant so appealed from, we do further, in consideration thereof and of the premises, jointly and severally undertake and promise, and do acknowledge ourselves further and jointly and severally bound in the further sum of five hundred and ninety one-hundredths dollars, being double the amount named in the said judgment, that if the said judgment appealed from, or any part thereof, be affirmed or the appeal be dismissed, the appellant shall pay defendant, the Times-Mirror Company, the amount directed to be paid thereby, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal; and if the appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered on motion of respondent in its favor against the said sureties for such amount, together with the interest that may be due thereon, and the damages and costs that may be awarded against the appellant upon the appeal herein.
[Seal] "Mary T. Duncan.
[Seal] "F. N. Myers."
The undertaking does not recite or allude to the order denying a new trial, and is plainly ineffectual as to that appeal. (Berniaud v. Beecher , 74 Cal. 617; Schurtz v. Romer , 81 Cal. 244; McCormick v. Belvin , 96 Cal. 182; Pacific Pav. Co. v. Bolton , 89 Cal. 155.)
The trouble with the undertaking on the appeal from the judgment is that it does not contain the words "or on a dismissal thereof," as required by the statute. It does contain a stipulation that the sureties will pay all damages and costs which may be awarded against the appellant on the appeal, but if the appeal be dismissed, costs are an incident as a matter of law, and are not awarded on the appeal.
The undertaking is in two parts, which might have been contained in two undertakings. The last is to secure a stay of execution and not in consideration of the appeal. This undertaking contains the condition which ought to have been in the undertaking given to secure the appeal. By this first undertaking the sureties became bound for three hundred dollars, and by the second for five hundred dollars. There can be no doubt that in case of a dismissal the sureties on the second undertaking would be liable for the costs and damages in the same manner in which they would have been liable on the first undertaking had it contained the required stipulation . It is contended that this is a substantial [42 P. 148] compliance with the statute.
This is not a new question here. The point was discussed and decided adversely to appellant in Duffy v. Greenebaum , 72 Cal. 157. In addition to the reasons there given for the ruling, it may be suggested that three hundred dollars is not always sufficient to secure to a respondent his costs and damages, and it was competent for the legislature to require further security in case a stay of execution was desired; and further, there is no effectual provision for the justification of the sureties on the undertaking for the appeal; for, although they may be required to justify under section 948 of the Code of Civil Procedure, yet, if they fail to justify, the only consequence is that the execution is no longer stayed. (Swasey v. Adair , 83 Cal. 136.) The appeal would therefore be effectual, although the sureties may be found worthless. True, if the sureties are the same on each bond, it would not help the matter unless a new undertaking were given; but to secure a stay new sureties must be provided, and this may be why the stipulation must be in each undertaking. At all events, such are the requirements of the code, and there can be no question of the power of the legislature to prescribe any reasonable condition to the exercise of the right of appeal.
Appellant offers, if authority to file an amended undertaking exists, to give an undertaking conforming in every respect to the statute. The motion to dismiss was made upon due notice, and a brief on the part of the moving party was also submitted, to which a reply was made by appellant. In the notice and printed brief the defects in the undertaking were pointed out.
Section 954 of the Code of Civil Procedure reads as follows: "If the appellant fails to furnish the requisite papers, the appeal may be dismissed; but no appeal can be dismissed for insufficiency of the undertaking thereon if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal ."
Had there been no statute upon the subject we might, perhaps, where an undertaking has been filed in due time, and evidently with an honest intent to comply with the law, but which is defective, allow a new undertaking to be filed. But here an opportunity is afforded to an appellant to correct any such mistake. The code expressly provides when the appellant must avail himself of the privilege. He must do so before the hearing of the motion to dismiss. He cannot contest the motion, and then claim the privilege, if the motion is decided against him. This express provision is a limitation upon the discretion of the court.
The transcript on appeal in this case contains a certificate to the effect that "an undertaking on appeal in due form has been properly filed," as required by section 953 of the Code of Civil Procedure. It is contended that this certificate is conclusive; that in case the certificate is untrue the respondent has his remedy against the clerk, who is liable on his official bond. This proposition has been frequently suggested here on the consideration of similar motions, and, although it has not been discussed in any reported decision, the court has constantly and frequently permitted parties to go behind this certificate. It could not have been intended that the judgment of the clerk should be final in this matter. "For all purposes connected with the appellate jurisdiction, the appellate court has the same power over the clerk of the court below as it has over its own clerk." (People v. Center , 54 Cal. 236; Winder v. Hendrick , 54 Cal. 275.) We do not claim any authority over him while performing his customary duties as clerk of the lower court, but duties connected with our appellate jurisdiction we can require him to perform. That we are not bound by his certificates as to the correctness of a record has been repeatedly decided. On the contrary, when necessary, we may compel him to correct his certificate, and transmit to this court a proper record.
Section 953 places the certificate of the attorneys upon the same plane as the certificate of the clerk. Such a certificate was considered in Perkins v. Cooper , 87 Cal. 241. In that case the court permitted the respondent to prove, against the certificate of his attorneys, that no undertaking on appeal had in fact been filed.
The rationale of that decision is that to give this court jurisdiction there must be in fact an undertaking or a waiver of it. A false certificate stating that an undertaking had been filed does not confer jurisdiction. In the above case the certificate of counsel was made after the time for filing the undertaking had expired, and, therefore, it could not be construed as a waiver. The case seems in point here.
The appeals, both from the judgment and from the order refusing a new trial, are dismissed.