Pardee v. Murray , 4 Mont. 35 ( 1881 )

Wade, C. J.

The respondent moves to dismiss this appeal for the reason that the undertaking was not filed within the time prescribed-by the statute.

The notice of appeal was served on the 5th day of June, 1880, and the undertaking was filed on the 10th day of July, 1880.

The code, section 409, provides that an appeal is taken by filing with the clerk of the court in which the judgment is rendered, or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar noticec on the adverse party or his attorney. The section furfcher provides that the appeal is ineffectual for any purpose, unless, within five days after service of the notice of appeal, an undertaking be filed, or a deposit of monejr be made, or that the undertaking be waived in writing.

This section of our code is the same as that of the California code, and the supreme court of that state has construed the section, passing directly upon the effect and consequence of failing to file the undertaking within the statutory time, and holding that such failure is fatal to the appeal.

In Hastings v. Halleck, 10 Cal. 31, the court says: “To constitute an appeal there are three things necessary: first, filing the notice; second, the service of the same; and third, filing the undertaking. All these steps must be taken within the times limited by the statute. If not so taken there is no appeal perfected, and the court has no jurisdiction of the case.” Referring to Bryan v. Berry, 8 Cal. 133; Franklin v. Reiner, id. 341; Whipley v. Mills, 9 Cal. 641.

In the case of Aram v. Shallenberger, 42 Cal. 278, the court says: “The times at which, and the successive order in which, the several steps are to be pursued to take and perfect an appeal, are distinctly prescribed by statute, and must be observed; otherwise the appeal must fail here, if timely objection be taken by the respondent. We have no authority to relieve a party from the consequences of a failure in these respects.”

These authorities seem conclusive upon the question that there was no appeal perfected in the case, because of the failure to file the undertaking within the time limited by law.

But the appellants say by affidavit there is an error in the record, and that the notice was served and the undertaking filed within the statutory time. If this is true, the error may be corrected in the court below. It cannot be corrected here. We cannot make records for that court. The appellants ought to have an opportunity to correct any error in the record in the proper court. This motion, suggesting a diminution of the record, and that the same be remitted to the court below for correction, is granted.

Motion to dismiss overruled.