Tompkins v. Montgomery

Citations

• 116 Cal. 120
• 47 P. 1006
• 1897 Cal. LEXIS 520

Syllabus

<p>Appeal—Failure to File Transcript—Dismissal.—Where no transcript has been filed upon appeal from a judgment within the time limited by the rule, or at the time when notice of motion to dismiss the appeal on that ground was served, the respondent is entitled to have the motion granted.</p> <p>Id.—Appeal from New Trial Order—Amendment of Motion to Dismiss—Transcript on File.—When a motion to dismiss an appeal from a judgment is amended so as to include an appeal from an order denying a new trial, the motion to dismiss the appeal from the order cannot be regarded as having been made until notice is given of the amendment to the motion, and if the transcript is filed on that day, and the respondent does not show that his notice was given prior to its filing, it is a sufficient answer to the latter motion.</p> <p>Id.—Defective Transcript — Prior Notice of Appeal—Suggestion of Diminution of Record—Correction.—Where the transcript on file purports to contain a record of all the proceedings of the superior court sought to be reviewed, it is sufficient to prevent a dismissal of the appeal, and if it is defective in not setting forth a notice of appeal prior to the one set forth in the transcript, the defect is to be corrected upon suggestion of diminution of the record, upon notice to the appellant, who is allowed until the hearing of the cause to present the additional record.</p> <p>Id.—Notice of Appeal — Undertaking — Failure of Sureties to Justify—Second Appeal.—The failure of the sureties to justify upon the three hundred dollars undertaking on appeal from the judgment does not render the appeal ineffectual, or take from this court the jurisdiction of the cause, and while an appeal is pending upon one notice and undertaking, a second appeal is unauthorized.</p> <p>Id.—Stay of Execution—Undertaking in Appellate Court—Appeal from New Trial Order—Dismissal of Appeal from Judgment.— Am appellant is not precluded from applying to the appellate court for leave to file an u