Woodside v. Hewel

Citations

• 107 Cal. 141
• 40 P. 103
• 1895 Cal. LEXIS 723

Syllabus

<p>Appeal—Dismissal—Defective Transcript—Supplying Notice of Appeal.—Upon a motion to dismiss an appeal upon the ground of a defect in the transcript in omiting a notice of appeal from the judgment, the appellant may supply the defect, upon suggestion of a diminution of the record, by filing a certified copy of the omitted notice of appeal and of the undertaking given thereon, and in that case the appeal will not be dismissed.</p> <p>Id.—Construction of Code—Rules of Court. —Section 954 of the Code of Civil Procedure, which provides that if the appellant fails to furnish the requisite papers the appeal may be dismissed, is to he construed in connection with the rules of the supreme court as to the correction of defects which may he cured upon suggestion of diminution of the record, and not as giving to the respondent the absolute right to a dismissal of the appeal upon the mere showing that the transcript filed is defective, but as authorizing a dismissal of the appeal if the defendant fails to furnish the requisite papers after the diminution of the record has been suggested.</p> <p>Id.—Effect of Second Notice of Appeal.—Where an appeal has been legally taken from a judgment, the including of an additional notice of appeal from the judgment, in the notice of appeal from the order denying a new trial has no effect, either as an original appeal or to impair the previous appeal pending.</p>