Perkins v. Cooper

25 P. 411, 87 Cal. 241, 1890 Cal. LEXIS 1125

Opinion

The Court.

Attention was called to the fact so briefly, and in such an incidental way, at the original hearing, that it escaped our notice; but upon rehearing, it is made manifest to us that there is nothing before us, in this cause, which we have jurisdiction to hear and determine.

A money judgment was rendered in the cause October 31, 1888. Notice of appeal was served and filed December 26th of the same year. No undertaking on appeal ivas ever filed or waived. The appeal was therefore “ ineffectual for any purpose.” (Code Civ. Proc., sec. 940; Holcomb v. Sawyer, 51 Cal. 417; Boyd v. Burrel, 60 Cal. 281; Biagi v. Howes, 63 Cal. 384; Brown v. Green, 65 Cal. 222; Stratton v. Graham, 68 Cal. 168; Little v. Jacks, 68 Cal. 344, 345; Duffy v. Greenebaum, 72 Cal. 159; Estate of Skerrett, 80 Cal. 63; Schurtz v. Romer, 81 Cal. 245.) The appeal being ineffectual for any purpose, there has been and is no case here for our determination.

Attached to the transcript which has been filed herein, there is a stipulation, entitled in this court, agreeing to the correctness of the transcript, and stating that a good and sufficient undertaking on appeal has been duly executed and filed. It is both proved and conceded that this statement is untrue, and the attorney for respondent says that he signed it without actual knowledge of the fact, and relying upon the statement of the counsel on the other side that such an undertaking had been filed, coupled with the fact that he knew the counsel to be perfectly familiar with the requirements of the statute and a careful practitioner, and also that the parties were amply able to file the undertaking. There is possibly some doubt as to just what was said on the subject when that stipulation was signed; but there is no doubt about the fact that the statement contained in it on the subject of undertaking was untrue. From that fact, it follows,— 1. That there was then no case in this court in which counsel could bind a client by such a stipulation; 2. That if the language of the stipulation could possibly be construed as a waiver of an undertaking (which we very much doubt), it could only operate as a waiver as of and from the date of the stipulation, March 28,1889, and there was at that date no appeal pending in which to waive an undertaking, and no cause pending in this court in which to make the stipulation. In In re Skerrett, 80 Cal. 63, it was held that, in order to entitle certain parties to appeal without filing an undertaking, under section 946 of the Code of Civil Procedure, the order dispensing with the undertaking must be made within the time prescribed by law for filing the undertaking. So if the filing of an undertaking is to be waived, it must be done within the time for filing; otherwise, the appeal is lost, and the party has acquired a right of which he cannot be deprived by that attempt to appeal.

The order heretofore entered in this cause must be set aside, and the attempted appeal dismissed. So ordered. Rehearing denied.