Lindy v. McChesney

HARRISON, J.

Motion to dismiss the appeals.

1. The appellant, Mary E. Mann, gave notice to the respondents, February 11, 1901, of her appeal from the order made in the above-entitled proceeding, by which a nonsuit was granted and entered against her, and from the order given and entered therein, by which a default was granted and entered against her, and from the judgment given, and entered therein, in favor of the other defendants and against her. On the same day she filed an undertaking on appeal, in which, after reciting her notice of appeal, the sureties undertook and promised on her behalf that she would pay all damages and costs which might be awarded against her “ on said appeal or on a dismissal thereof,” not exceeding the sum of three hundred dollars. The respondents now move to dismiss these appeals, upon the ground that no undertaking has been filed sufficient to give to this court jurisdiction thereof.

The rule of practice in this state mnst be regarded as so settled as not to require the citation of authorities that, under the provisions of the code, there must be given an undertaking in the sum of three hundred dollars in connection with every appeal from an order or judgment, in order to give to this court jurisdiction of such appeal. The only exception to this rule is where an appeal is taken at the same time from a judgment and an order denying a new trial. If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals. Otherwise, a motion to dismiss the appeals will be granted. This rule is not varied by the fact that one or more of the orders included in said appeal is not appealable.

(Centerville etc. Co.

v. Bachtold, 109 Cal. 111 .) The jurisdiction of this court cannot be invoked to determine whether an order is appealable until the steps prescribed by the statute for invoking such jurisdiction have been complied with. In Centerville etc. Co.

v. Bachtold, 109 Cal. 111 , we said: “Wheth *3 er the order appealed from is an appealable order is a question of law which can be determined only by a judicial comparison of the record containing the order with the statutes prescribing the orders from which appeals may be taken, and as this court cannot exercise its appellate jurisdiction of a cause until after the appeal has been perfected, we are limited, upon a motion to dismiss an appeal upon the ground that it has not been perfected, to a consideration of the steps taken for perfecting the appeal, and cannot look into the record either for the purpose of determining whether the order appealed from is appealable, or whether the appeal is without merit, or whether the court below has committed error in its rulings. On the other hand, whether an appeal has been perfected is a question of fact, depending upon proceedings subsequent to the entry of the order in the court below. When a motion to dismiss an appeal is made upon this ground, the character or nature of the order appealed from is not involved, and the action of the court is limited to determining whether the steps taken for the appeal are in compliance with the statute prescribing the mode of taking an appeal.”

2. After the rendition of the judgment, the appellant moved for a new trial, which was subsequently denied by the court, and she thereupon took an appeal from this order. The respondents ask to have this appeal dismissed upon the ground that the judgment was given against the appellant by default, and that a motion for a new trial was unauthorized, and, therefore, there can be no appeal from the order denying a new trial. This, however, involves an examination of the record, and the determination of the correctness of the action of the court below upon the facts presented to it by the appellant, a question which cannot be considered upon a motion to dismiss the appeal. (See Jarman v. Rea, 129 Cal. 157 , and cases there cited.) If the court had no authority to hear or determine a motion for a new trial, that may be a reason for affirming its action when the cause shall be heard, but is not a ground for dismissing the appeal.

The appeals from the orders and judgment taken February 11, 1901, are dismissed. The motion to dismiss the appeal from the order denying a new trial is denied.

Earoutte, J., and Van Dyke, J., concurred.