of notice of appeal, and the sufficiency of the undertaking required by sections 940 and 941. Experience had shown that the three hundred dollar undertaking exacted of an appellant was of little or no real benefit to the respondent. The new method was designed to enable appellants to dispense with this undertaking altogether. was never contemplated that an appeal perfected under the new method should be less effectual or operative for any purpose than the appeal for which it was an alternative.-Estate of Stough, 173 Cal. 638, 161 Pac. 1.

It

2. As to procedure to procure.-An appellant can not take advantage of the new and more liberal procedure of the new sections as to appeal unless the appeal has been taken within the time specified. If he has given his notice after the time allowed by the alternative method, but within that specified by section 939, he must comply with section 940 requiring the serving (as well as the filing) of his notice of appeal and the giving of an undertaking. -Theisen v. Matthai, 165 Cal. 249, 131 Pac. 747.

See, also, ante, § 940, note pars. 4-6.

3. Certification to transcript of testimony. The trial judge can certify to a transcript of the testimony only when it has been prepared by the official stenographic reporter present at the trial as required by section 953a.-Bush v. Allen, 172 Cal. 102, 155 Pac. 456.

4. A transcript of the testimony certified to by the clerk alone can not be considered on an appeal taken under this section.Bush v. Allen, 172 Cal. 102, 155 Pac. 456.

5. Service of notice of appeal.-Under an appeal taken under this section and sections 941b and 941c neither a service of the notice of appeal nor an undertaking is necessary. -Estate of Stough, 173 Cal. 638, 161 Pac. 1. 6. Undertaking not required. If the appeal be regarded as taken under the "new and alternative method" any defects in the undertaking must be disregarded because no undertaking is required thereunder. An appeal will not be dismissed where the appellant has complied with all the requirements of the new method even though he supposed he was proceeding under the old, and may have made an ineffectual attempt to take some of the steps necessary before the enactment of the new provisions.-Theisen v. Matthai, 165 Cal. 249, 131 Pac. 747.

7. Under the alternative method of appeal no undertaking is required, and therefore, the want of one will not justify a dismissal of the appeal if the steps taken to perfect it comply with the rules laid down in the two following sections.-Title Ins. & Trust Co. v. California Devel. Co., 168 Cal. 397, 143 Pac. 723.

§ 941b.

ALTERNATIVE METHOD OF APPEALNOTICE.

1, 2. Construction of section. 3-8. Notice of appeal-As to sufficiency of. 9-12. Service of.

13-16.

1.

Time for filing of.

Construction of section.-This section shows a design to avoid the technicalities involved under section 940. The main design is to compel the prevailing parties to look to the files to ascertain whether or not an appeal has been taken, and to avoid the necessity previously imposed upon the appellant of determining which were adverse parties upon his proposed appeal, and of finding them and serving them the required notice at the peril of losing his appeal if he made a mistake. It is not required that the adverse parties shall be named as such in the notice and we hold it unnecessary to do so.-Southern Pac. Co. v. Superior Court, 167 Cal. 250, 139 Pac. 69.

2. While it is true that provisions conferring the right of appeal and prescribing the procedure are remedial and should not be unduly hampered with constructive restrictions which will cast doubt upon the jurisdiction of the appellate court, it is equally true that where the language of the statute conferring that right is so plain and unequivocal as that its meaning, intent and purpose are in no particular or manner rendered obscure or doubtful, the courts will require a substantially strict compliance with the mode so prescribed.-Johnson v. Superior Court, 28 Cal. App. 618, 153 Pac. 404.

3. Notice of appeal-Sufficiency of.-A notice of appeal in the following form: "Notice is hereby given, pursuant to section 953a, Code of Civil Procedure, to all persons concerned that the undersigned desires to appeal, and does hereby appeal to the Supreme Court from the order," etc., is sufficient under this section. The fact that it is so drawn as to serve the double office of a notice of appeal and a notice to the clerk under section 953a does not destroy its effect as a notice of appeal, nor is the statement that it is given "pursuant to section 953a" fatal to its sufficiency as a notice of appeal.-Estate of Faber, 168 Cal. 491, 143 Pac. 737.

4. No notice of appeal is required other than the notice of appeal filed with the clerk.-Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 171, 146 Pac. 665.

5. A failure to address the notice of appeal to all of the adverse parties or any of them does not affect the validity of the appeal.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542.

6. The decisions holding that the notice hereunder must be in writing and that actual notice is not sufficient are not applicable to section 953a.-French v. Macnider, 28 Cal. App. 67, 151 Pac. 371.

7. A notice of appeal, though defective in not being several in form, may, under the liberal practice now prevailing, be regarded as sufficient. Sweet v. Richvale Land Co., 29 Cal. App. 111, 154 Pac. 608.

8. In an action against five defendants composing a board of trustees of a high school district, an appeal from the judgment will not be dismissed upon the alleged insufficiency of the notice of appeal which in the title merely describes the defendants as "Charles L. Sanderson et al., Defendants" (without naming each defendant), but in the body of the notice states "that the defendants above named desire to appeal and do hereby appeal . . . from the whole of that certain order. . . and from the whole of the judgment of the aforesaid Superior Court, etc."-Hopkins v. Sanderson, 29 Cal. App. 666, 159 Pac. 1064.

9. -Service of.-Actual service of a written notice of the entry of a judgment, order, or decree is essential to start running the sixty-day period allowed within which to appeal.-Huntington Park Imp. Co. v. Park Land Co., 165 Cal. 429, 132 Pac. 760.

10. In order to escape the necessity of serving notice of appeal and giving an undertaking the appellant must file his notice of appeal within the time fixed herein. If he allows that time to go by, and is still within the time allowed under the old method (section 939) he must serve his notice and give his undertaking as required when that was the only method of appeal.Title Ins. & Trust Co. v. California Devel. Co., 168 Cal. 397, 143 Pac. 723.

11. Before a respondent may invoke the limitation of sixty days contemplated by this section as the time within which, after notice of the entry of judgment, an appeal may be taken, there must be a formal notice of such entry actually served upon the attorney of record.-McDonald v. McDonald, 168 Cal. 433, 143 Pac. 726.

12. Where the appeal is taken more than sixty days after the entry of judgment, and it does not appear that any notice of the entry of judgment was served the court on appeal may examine whether or not the evidence sustains the findings.-Blair V. Brownstone Oil & Ref. Co., 168 Cal. 632, 143 Pac. 1022.

13. -Time for filing of.-A notice of appeal taken under the new or alternative method filed with the clerk thirty-one days after the filing of the judgment, is sufficient. -Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 171, 146 Pac. 665.

14. Statutes limiting the time of appeal are jurisdictional and mandatory, and in the absence of an express authorization in the statute itself, a court has no power to extend the time for taking an appeal, or to relieve an appellant from the effect of misfortune, accident, surprise or mistake.-

Lancel v. Postlethwaite, 172 Cal. 326, 156 Pac. 486.

15. An appeal taken from a judgment within six months after entry is within the time prescribed by section 941b of the Code of Civil Procedure, in the absence of any showing of service of written notice of entry of judgment upon the appellant.Magee, Jr., v. Magee, Sr., 53 Cal. Dec. 115, 162 Pac. 1023.

16. When an appeal from a judgment is not taken within sixty days after its entry, its consideration is necessarily confined to an examination of the judgment-roll.Healy v. Obear, 29 Cal. App. 696, 157 Pac. 569.

1.

method-Con

Appeal by new method-Construction, -The filing of a notice of appeal under the alternative method in cases where a stay bond is not required by this and the three following sections, is operative to the same extent as the filing and service of notice followed by the giving of the three hundred dollar undertaking under the old method.Estate of Stough, 173 Cal. 638, 161 Pac. 1.

2. Upon an appeal taken under the new and alternative method provided by sections 941a, b, and c of the Code of Civil Procedure enacted in 1907, from an order appointing the executor of a will, the filing with the clerk of the notice of appeal stays all proceedings on the order, without the necessity of the giving of the three-hundred-dollar undertaking, or any stay bond.-Estate of Stough, 173 Cal. 638, 161 Pac. 1.

3. The provisions of sections 942, 943, 944 and 945 of the Code of Civil Procedure as to stay of proceedings upon the perfecting of an appeal apply only where the appellant has money or other property in his possession or under his control which has been adjudged by the lower court to belong to the respondent, or where the appellant has been directed to do some act for the benefit of the respondent.-Halsted v. First Savings Bank, 173 Cal. 605, 160 Pac. 1075.

5. Liability of sureties.-The surety on an undertaking given on appeal to stay execution of a judgment for the return of certain personal property, or its value, and for the sum of four thousand six hundred and eighty-seven dollars and sixty-three cents with costs, is liable upon the affirmance of the judgment upon appeal, notwithstanding an amount in cash in excess of the total amount of the money judgment was paid over by the appellant together with all the other remaining property described in the judgment which had not been sold by the appellant pending the appeal.-Hammond v. United States Fidelity & Guaranty Co., 29 Cal. App. 464, 155 Pac. 1023.

6. An undertaking on appeal from a judgment for the return of personal property, or its value, and for a certain sum of money, is not void, because the amount is fixed by the parties, instead of by the court; the sureties are bound by the statements in their contract and can not question the truth of such recitals.-Hammond v. United States Fidelity & Guaranty Co., 29 Cal. App. 464, 155 Pac. 1023.

7. When the party in whose favor the undertaking was executed had had the benefit of a stay of execution, the sureties could not be heard to say that the undertaking was void because all the forms of the statute, through their omission, were not complied with. - Hammond v. United States Fidelity & Guaranty Co., 29 Cal. App. 464, 155 Pac. 1023.

§ 943.

1.

-Judgment for delivery of document, appeal - Construction. — This section does not apply to a judgment for sale upon the foreclosure of a pledge.-Southern Pac. Co. v. Superior Court, 167 Cal. 250, 139 Pac. 69. 2. An order of the court requiring the sheriff to take into his possession and deliver to the petitioner certain personal property and documents is not stayed by the mere fact of perfecting an appeal under the alternative method without giving the stay bond provided herein.-Bailey v. Superior Court, 31 Cal. App. 78, 159 Pac. 990.

§ 945.

1. Appeal affecting real property-Undertaking, effect of and liability on. The undertaking given under section 945 of the Code of Civil Procedure operates as a permanent stay of execution pending the appeal.-Jameson v. Chanslor-Canfield Midway Oil Co., 173 Cal. 612, 160 Pac. 1066.

2. Where an undertaking has been given pursuant to this section to stay execution pending appeal the supreme court has no inherent or statutory power to require further security as a condition to the maintenance of the stay of execution of the judgment. Jameson V. Chanslor-Canfield Mid. Oil Co., 173 Cal. 612, 160 Pac. 1066. 3.

Where an appeal is taken by one person, and the undertaking thereon purports on its face to be given on an appeal taken by several persons, such undertaking is insufficient to support the appeal, and no recovery can be had against the sureties.Fry v. Astorg, 29 Cal. App. 740, 156 Pac. 873. 4. No liability is incurred by the surety on an undertaking on appeal taken by one of several defendants, where the undertaking recites on its face that it was given as security on an appeal taken by all the defendants in the action.-Fry v. Astorg, 29 Cal. App. 740, 156 Pac. 873.

$946.

STAY ON APPEAL.

1, 2. Construction of section. 3-8. Stay pending appeal. 9-11. Supersedeas, writ of.

1.

Construction. The obvious purpose of this section was to excuse a stay bond when the court below in its discretion shall so order, where the appellant is a trustee acting under and by virtue of some official authority, whether by appointment of the court or by appointment under a statute as officer of the court.-Mercantile Trust Co. v. Miller, 166 Cal. 563, 137 Pac. 913. 2.

an

The superintendent of banks when acting as an officer liquidating the assets of a bank and distributing them to its creditors is a "trustee" and also a person acting in "another's right" within the meaning of this section. Mercantile Trust Co. v. Miller, 166 Cal. 563, 137 Pac. 913.

3. Stay pending appeal.-By the appeal, the jurisdiction of the lower court in regard to all matters relating to the correctness or validity of the judgment or order appealed from is suspended, with the result that the lower court is without power to take any action in regard thereto during the pendency of the appeal.-Parkside Realty Co. v. MacDonald, 167 Cal. 342, 139 Pac. 805.

4. In an action against a bank and a third person to determine the ownership of money on deposit in a savings bank, and to enjoin the third person from withdrawing the deposit, the judgment that the defendant is the owner of the money and that she do have and recover the same from the bank, is not stayed by the taking of an

appeal from the judgment by the plaintiff and the giving of the ordinary three hundred dollar bond for costs, etc., the bank remaining neutral in the action and not appealing, and the appellant giving no stay bond.-Halsted v. First Sav. Bank, 173 Cal. 605, 160 Pac. 1075.

5. An appeal does not stay the force of a prohibitive injunction, and the lower court has full power to punish a violation of such injunction pending the appeal, but it is otherwise where the injunction is mandatory.-Wolf v. Gall, 174 Cal. 140, 162 Pac.

7. The effect of the perfecting of an appeal is to stay all further proceedings upon the judgment or order appealed from or matters embraced therein in the court below; it operates to remove the subjectmatter of the adjudication from the jurisdiction of the court below pending the appeal, and suspends the power of that court to enforce its order until the appeal is determined.-In re Dupes, 31 Cal. App. 698, 161 Pac. 276.

8. An appeal taken from an interlocutory decree of divorce wherein the custody of the children of the marriage was awarded to the father has the effect of staying all proceedings as to such custody pending the appeal, and where the mother has possession of them under an order made prior to the trial, the court has no jurisdiction to vacate such order and direct that their possession be given to the father, until the appeal is determined.-In re Dupes, 31 Cal. App. 698, 161 Pac. 276.

an

9. Supersedeas, writ of.-A writ of supersedeas will not issue to stay execution on a judgment pending an appeal from order denying a motion to set the judgment aside, where it appears from the petition that while the attorney who appeared for the petitioner in the action in which the judgment was rendered was not authorized so to do and that the trial of the action and the entry of judgment were had without the petitioner's knowledge, and there is no denial therein that he was duly served with summons, nor assertion made that he made any arrangement for representation by other counsel.-Bryan v. Superior Court, 169 Cal. 761, 147 Pac. 938.

10. The granting of a writ of supersedeas is warranted in an action between conflicting claimants to money on deposit in a bank, in which the bank remains neutral, where there is rendered a simple money judgment in favor of one of the claimants against the bank, and the judgment is not 1917 Sup.-37.

stayed by the appeal taken therefrom by the other claimant and it is made to appear that the respondent is without means. Halstead v. First Savings Bank, 173 Cal. 605, 160 Pac. 1075.

11. The power to grant a writ of supersedeas exists in cases where the writ is necessary to preserve the status quo so that the rights involved in an appeal, when determined, may not be lost or prejudiced by reason of the intervening execution of the judgment, and where the statute regulating a stay of proceedings on appeal makes no provisions for such stay in the particular case.-Halsted v. First Savings Bank, 173 Cal. 605, 160 Pac. 1075.

$948.

1. Filing new undertaking. Where the bond fails in substantial respects to comply with the statute, and therefore is not effective to stay execution, the appellant may, at any time before the execution of the judgment, and without any authority from the appellate court, file another undertaking, which, if sufficient, will stay execution. -Bradley Co. v. Mulcrevy, 166 Cal. 325, 136 Pac. 60.

§ 949.

1. Undertakings in other cases Construction. The exception as to the sale of perishable property has reference to the case where the order appealed from and directing a sale has been made on the ground that the property is perishable, and contemplates an adjudication or finding to that effect on the part of the court making such order.-Zappettini v. Buckles, 167 Cal. 27, 138 Pac. 696.

2. An undertaking under this section will not stay execution of a judgment foreclosing a trust deed for a large sum and directing the sale of both personalty and realty. The undertaking in such a case is that provided for in section 945.-Southern Pac. Co. v. Superior Court, 167 Cal. 250, 139 Pac. 69.

3. The stay given by virtue of this section in case of appeal is effectual only as to the judgment in so far as it affects the appellant, requires him to do something for the benefit of the respondent, or permits something to be done as to the appellant. There is no provision of law requiring a stay bond from the appellant as a condition precedent to staying proceedings in the lower court on the judgment appealed from in so far as the judgment is against the appellant. Any stay bond given under such circumstances would be without consideration and hence unenforceable.-Halstead v. First Sav. Bank, 173 Cal. 605, 160 Pac. 1075.

§ 950.

1. Record furnished on appeal.-A supplemental bill of exceptions is reviewable on an appeal from a judgment, although not reviewable on appeal from an order denying a new trial.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac.

542.

2. Upon an appeal from an order denying a motion for a new trial, affidavits stated to have been used on the motion can not be considered where they are not authenticated in any manner. Moore v. Pacific Coast Steel Co., 171 Cal. 489, 153 Pac. 912.

3. A bill of exceptions duly proposed and settled for use on motion for a new trial may be used in support of an appeal from the judgment, although it was not regularly used on the motion for a new trial.Vore v. Ephraim, 173 Cal. 245, 159 Pac. 719.

4. An appeal from an order denying a motion for a change of the place of trial of an action upon the ground of the convenience of witnesses can not be considered on its merits, where the transcript contains no certificate of the judge of the court that the papers and records which the transcript contains, or any of them, were used upon the hearing of the motion.Avello v. Sampson, 28 Cal. App. 324, 152 Pac. 313.

5. Where an appellant supports his appeal by the judgment-roll alone, he can not complain of a failure to find on his allegations of new matter. It will be presumed, in favor of the correctness of the judgment and findings, that no evidence upon this phase of the case was in fact presented to the court.-Parker v. Power, 28 Cal. App. 332, 152 Pac. 935.

6. An appellate court will not take cognizance of the contents of an affidavit which has come into the transcript under a certificate describing it as part of the judgment-roll, when it is not a part of the judgment-roll and does not appear to have been one of the papers used in connection with the order from which the appeal was taken. Nolte v. Nolte, 29 Cal. App. 126, 154 Pac. 873.

7. If a proposed amended answer is not incorporated in the record of the proceedings of the trial, the appellate court can not determine whether the lower court was right or wrong in refusing permission to file it.-Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

8. Where upon an appeal from a judgment of nonsuit, the evidence is not brought up in the transcript, the judgment must be affirmed. Nicholson v. Leatham, 28 Cal. App. 597, 153 Pac. 965.

9. Affidavits in support of a motion for a new trial on the ground of newly discovered evidence can not be considered on appeal, although contained in the printed transcript, where not in any manner authenticated as part of the record on appeal.-Crofford v. Crofford, 29 Cal. App. 662, 157 Pac. 561.

10. In this action to establish a trust, alleged error in refusing the admission in evidence of a letter written by the defendant to the husband of one of the plaintiffs in reply to a letter written by the latter concerning the consummation of an escrow arrangement already admitted in evidence, can not be considered on appeal where the record contains no copy of the excluded

letter.-McIntosh v. Hunt, 29 Cal. App. 779, 157 Pac. 839.

11. An appellant may, under section 950 of the Code of Civil Procedure, include the evidence in the record.-Gambetta v. Gambetta, 30 Cal. App. 261, 157 Pac. 1141.

12. A defendant, having failed to answer, may take his appeal from the judgmentroll alone.-Gambetta v. Gambetta, 30 Cal. App. 261, 157 Pac. 1141.

§ 953a.

APPEAL FROM SUPERIOR COURT-NEW METHOD.

1, 2. As to purpose of the act. 3-6. Construction of section.

7-10. Notice as to appeal and transcript. 11-14. Service of notice.

15-20. Transcript-As to what may be included in.

21-30. Authentication or certification.

1. As to purpose of act.-The object of the amendment of August 8, 1915, to section 953a of the Code of Civil Procedure extending the time for filing notice with the clerk for the making up and preparation of a transcript to be used on appeal from a judgment when a proceeding on motion for new trial is pending, is to enable a party to include in his transcript the matters material to a review of the action of the court on his motion for a new trial, and thus to enable the desired review to be had.-Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

2. It was not, however, intended by such amendment to give a party who had appealed from a judgment prior to the change in the law and whose right to such a record had absolutely expired prior to such date, a right to a new record for the purpose of reviewing matters in no way germane to the question of the correctness of the disposition by the trial court of the motion for new trial, and material only to questions involved in the appeal from the judgment as the law stood before the change.-Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

on

3. Construction of section. Where the appellant does not follow this section he must print the transcript and serve and file copies thereof in the manner provided by the supreme court rules. The appellant can not avoid the rule requiring the record appeal from the judgment-roll alone to be printed by giving the clerk a notice, purporting to be within the terms of this section, to have the judgment-roll prepared as a typewritten record by the stenographic reporter. This section does not apply to such a case.-Harpold v. Slocum, 168 Cal. 364, 143 Pac. 609.

4. An appeal under this and the two following sections is authorized on an appeal from an order granting a motion to change the place of trial where the proceedings at the hearing were not taken down by a stenographer, and the evidence submitted consisted entirely of the files and