Hurley v. O'Neill

61 P. 658, 24 Mont. 293, 1900 Mont. LEXIS 41

• Court: Montana Supreme Court
• Decided: July 3, 1900
• Docket: No. 1485
• Status: Published

Opinion

PER CURIAM.

— Motion to dismiss an appeal from an order denying plaintiff’s motion for a new trial. It is based on the ground that this court has no jurisdiction of the appeal, for the reason that appellant has hied no undertaking to make the appeal effectual under section 1724 of the Code of Civil Procedure.

It appears from the record that the appellant gave notice of appeal both from the judgment, and from the order denying her a new trial, but the undertaking hied recites the appeal from the judgment only, and contains no reference to the appeal from the order. Under these circumstances, the only inference permissible is that the appeal from the order was abandoned. Whether this was done intentionally or not, the result is the same; for, though we have held that, upon an appeal from a judgment and an order denying a new trial, only one undertaking need be hied ( Watkins v. Morris, 14 Mont. 354, 36 Pac. 452; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129,) we cannot agree that an undertaking is sufficient to effectuate the appeal from the order where the undertaking contains no reference to an appeal therefrom. The question here presented was decided by this court adversely to appellant in Withers v. Kemper, (not reported)

* during the present term. See also, Berniaud v. Beecher, 74 Cal. 617, 16 Pac. 510 ; Schurtz v. Romer, 81 Cal. 244, 22 Pac. 657; Pacific Paving Co. v. Bolton, 89 Cal. 154, 26 Pac. 650; Duncan v. Times Mirror Co., 109 Cal. 604, 42 Pac. 147.) The motion must therefore be sustained.

Dismissed.

Note — There was no written opinion filed in Withers v. Kemper; the order of dismissal was entered June 29,1900. — O. T. O.