Opinion
Rehearing 68 Cal. 343 at 345.
Appeal from a judgment of the Superior Court of Monterey County, and from an order refusing a new trial.
COUNSEL:
S. O. Houghton, for Appellant.
D. M. Delmas, for Respondent.
JUDGES: In Bank.
OPINION
THE COURT The court is satisfied with its opinion as rendered on the point considered in it. It accords with several former decisions, and there is none contrary to it brought to our notice or of which we are aware.
But there is a point which the court wishes argued again, that is, whether respondent waived his right to object to the irregularity in filing the undertaking on appeal before service of the notice of appeal by a stipulation in writing that the cause be placed on the calendar of this court for hearing for a day referred to in it, in the place of another case entitled Bucknall v. Huntsman .
To this point the reargument will be limited.
And it is ordered that the cause be placed on the calendar of the first Monday in February, 1886, for such reargument.
The following is the opinion above referred to, rendered on the 18th of December, 1885:
Ross, J. -- The question on this motion is whether, under the provision of the statute which declares that "the appeal shall be ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed," etc. (Code Civ. Proc., sec. 940), an appeal is effectual when the undertaking is filed before service of the notice of appeal.
If the statute is to be given effect, which must be done, we do not see how the question can be answered in any other way than in the negative. The statute expressly declares the appeal to be ineffectual for any purpose, unless within five days after service of the notice of appeal the required undertaking be filed. After service does not mean and cannot be held to mean before service. The undertaking relates to the notice, but without the notice there is nothing to which it can apply. We must grant the motion.
Appeal dismissed.
Myrick, J., Morrison, C. J., Thornton, J., and Sharpstein, J., concurred.