Wittram v. Crommelin

California Supreme Court

Wittram v. Crommelin

13 P. 160, 72 Cal. 89, 1887 Cal. LEXIS 466

CourtCalifornia Supreme Court

DecidedFebruary 22, 1887

DocketNo. 11995

StatusPublished

Cited by3 cases

This text of 13 P. 160 (Wittram v. Crommelin) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wittram v. Crommelin, 13 P. 160, 72 Cal. 89, 1887 Cal. LEXIS 466 (Cal. 1887).

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Opinion

Paterson, J.

— The failure of the sureties on an undertaking on appeal to justify after an exception to their pecuniary sufficiency has been taken does not render the appeal ineffectual. (Hill v. Finnigan, 54 Cal. 311.) It merely operates to avoid the stay of execution of the judgment appealed from. (Schacht v. Odell, 52 Cal. 449.)

The stipulation of respondent, therefore, extending the time for appellant’s sureties to justify is not a waiver of objection to any of the proceedings taken to effect the appeal. The notice of appeal was filed and served •on October 6, 1886. On the eleventh day of October, 1886, an undertaking on appeal was filed, and on the 14th of the same month the respondent served and filed exceptions to the sufficiency of the sureties. Since that time the justification of said sureties has been postponed from time to time by stipulation of counsel for the respective parties. No transcript has been filed herein, and the clerk of the Superior Court certifies “that the appellant has not requested the clerk to certify to a correct transcript of the record in said cause, and that no statement or bill of exceptions on appeal has been filed herein by plaintiff.”

For this failure to file the transcript within the forty days prescribed by the rule the motion to dismiss must be granted.

Appeal dismissed.

McKinstrY) J.) and Temple, J., concurred.

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Paterson, J.

— The failure of the sureties on an undertaking on appeal to justify after an exception to their pecuniary sufficiency has been taken does not render the appeal ineffectual. (Hill v. Finnigan, 54 Cal. 311.) It merely operates to avoid the stay of execution of the judgment appealed from. (Schacht v. Odell, 52 Cal. 449.)

The stipulation of respondent, therefore, extending the time for appellant’s sureties to justify is not a waiver of objection to any of the proceedings taken to effect the appeal. The notice of appeal was filed and served •on October 6, 1886. On the eleventh day of October, 1886, an undertaking on appeal was filed, and on the 14th of the same month the respondent served and filed exceptions to the sufficiency of the sureties. Since that time the justification of said sureties has been postponed from time to time by stipulation of counsel for the respective parties. No transcript has been filed herein, and the clerk of the Superior Court certifies “that the appellant has not requested the clerk to certify to a correct transcript of the record in said cause, and that no statement or bill of exceptions on appeal has been filed herein by plaintiff.”

For this failure to file the transcript within the forty days prescribed by the rule the motion to dismiss must be granted.

Appeal dismissed.

McKinstrY) J.) and Temple, J., concurred.

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13 P. 160, 72 Cal. 89, 1887 Cal. LEXIS 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wittram-v-crommelin-cal-1887.

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