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Galloway v. Rouse

ANNIE B. GALLOWAY, Admx., etc. v. JOHN C. ROUSE

Galloway v. Rouse, 63 Cal. 280 (1883)
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Court
California Supreme Court · State Highest Courts
Decided
March 27, 1883
Judges
Curlam
Citations
63 Cal. 2801883 Cal. LEXIS 429
Headnotes
Appeal—Serving and Filing Notice.—Under section 940 of the Code of Civil Procedure, the notice of appeal may be filed on a day subsequent to that upon which the service upon the adverse party is made.
Summary
Appeal from a judgment of the Superior Court of the county of Contra Costa, and from an order refusing a new trial. The respondents moved to dismiss the appeal. The facts are stated in the opinion of the court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Curlam

Text extracted by OCR from a scanned original; check the original for exact wording.

Pee Curlam.

“An appealis taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless "within five days after service of the notice of appeal an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.” (Code of Civil Procedure, § 940.)

This statute differs materially from the section of the former practice act regulating the mode of taking appeals, and as a consequence the decisions of this court based on the latter are no longer applicable.

As the statute now is, the notice of appeal may be filed with the clerk on a day subsequent to that upon which the service is *281 made. In the language of the statute “ the order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal an undertaking be filed, or a deposit of money be made” with the clerk, etc.

In the case at bar it appears from the certificate of the clerk that notice of appeal was served on the 20th of November, 1882, and on the 23d of the same month was filed with the clerk, together with an undertaking on appeal. From what has been said it follows that these steps constituted an effectual appeal.

No transcript on appeal haviug been filed within the time prescribed by the rules, and no extension of time having been obtained for that purpose, the motion to dismiss must prevail.

Appeal dismissed.

Hearing in Bank denied.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1896: 11903: 11916: 218962026peak 1916 · 2

Relies on it most ⓘ

  1. San Francisco Law & Collection Co. v. State74 P. 1047 (Cal. 1903)
  2. Robinson v. Templar Lodge No. 1745 P. 998 (Cal. 1896)
  3. Tettamauzi v. Zeno24 P.R. Dec. 53 (1916)
  4. Tettamauzi v. Zeno24 P.R. 49 (1916)

Most recent

  1. Tettamauzi v. Zeno24 P.R. 49 (1916)
  2. Tettamauzi v. Zeno24 P.R. Dec. 53 (1916)
  3. San Francisco Law & Collection Co. v. State74 P. 1047 (Cal. 1903)
  4. Robinson v. Templar Lodge No. 1745 P. 998 (Cal. 1896)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

No citations to other opinions in this database were found.

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