Swasey v. Adair

23 P. 284, 83 Cal. 136, 1890 Cal. LEXIS 651

• Court: California Supreme Court
• Decided: February 10, 1890
• Docket: No. 13178
• Status: Published

Opinion

Beatty, C. J.

The respondent in this case moves on several grounds to dismiss the appeal.

1. The transcript contains a copy of an undertaking on appeal, with its indorsements, certified by the county clerk to be correct, from which it appears that an undertaking on appeal in due form was properly filed, but this court has held that such evidence of compliance with the statutory provisions as to taking and perfecting appeals (Code Civ. Proc., secs. 940 et seq.) does not satisfy the express requirement of section 953, that the clerk or attorneys must certify that an undertaking in due form has been properly filed. (Railroad Co. v. Anderson, 77 Cal. 299.)

In this case, however, the appellant has offered to do what in that case it refused or neglected to do, i. e., to file an amended certificate pursuant to our rule No. 13. I think he should be allowed to file his amended certificate, and that such amended certificate should be held to cure the defect in the original.

2. The notice of appeal properly entitled in the action, and dated and served on February 6, 1889, refers to the judgment as entered October 24, 1888, and to the order denying a new trial as entered January 25, 1889. The date of the order is correctly given, but the judgment was rendered on the 23d and entered on the 26th of October. There was, however, but one judgment in the case, and it cannot be held that the slight mistake in the date of its entry had the effect of invalidating the notice of appeal.

3. The undertaking on appeal was dated and filed February 6, 1889, and was properly entitled in the action. It recites a judgment entered October 24, 1889, and an order denying a new trial dated January 25,1889. Here the year as well as the date of the judgment is incorrectly stated, but the mistake in the year is an obvious slip of the pen, and corrects itself, and the mistake as to the day is immaterial. Beside, the judgment is-otherwise correctly described, so that the sureties on the undertaking would be bound by it, and therefore it is sufficient.

4. The sufficiency of the sureties was excepted to, and they failed to justify. This is no ground for dismissing the appeal. It only affects the stay of execution. (Wittram v. Crommelin, 72 Cal. 89, and cases cited.)

• 5. The printed record is badly disfigured by interlineations, but it is not worse than others that have been tolerated here. It is not so bad as to call for a dismissal of the appeal or a reprint of the record.'

6. It is claimed that the appeal is without merit. We cannot consider that question on a motion to dismiss.

The appellant may file an amended certificate, and the motion to dismiss is overruled.

McFarland, J., Paterson, J., Sharpstein, J., Fox, J., and Thornton, J., concurred.