Clarke v. Mohr

Citations

• 125 Cal. 540
• 58 P. 176
• 1899 Cal. LEXIS 897

Syllabus

<p>Appeal—Dismissal—'Undertaking on New Trial Order—Consideration—Alteration.—An undertaking on appeal from an order denying a new trial before it is entered is without consideration; and the subsequent interlineation of the date of the order in such undertaking is an alteration which discharges the sureties from all obligation thereupon, and such appeal must be dismissed.</p> <p>Id.—Appeal prom Judgment—Sufficiency of Undertaking—Surplusage.—The undertaking upon appeal from the judgment is distinct from that upon appeal from the order denying a new trial, though both may be included in the same instrument, and, where such undertaking is supported by a sufficient consideration, and was filed in proper time, the invalidity of the undertaking upon appeal from the new trial order or a material alteration therein does not affect the appeal from the judgment, but the language in reference to the new trial order may be regarded as surplusage.</p> <p>Id.—Service of Notice of Appeal.—The notice of appeal from a judgment is not required to be served upon defendants who do not appear from the record to have been served with summons, or to have appeared in the action.</p> <p>Id—Dismissal—Grounds of Motion—Want of Sufficient Undertaking—Waiver.—An appeal cannot be dismissed for want of a sufficient undertaking where it is not made a ground of the motion of a respondent, as the respondent may have waived the giving of the undertaking.</p>