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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. It 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.
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.
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.
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.
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.-Thelsen 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.
8 941b. ALTERNATIVE METHOD OF APPEAL
NOTICE. 1, 2. Construction of section. 3-8. Notice of appeal-As to sufficiency of. 9-12 -Service of. 13-16. -Time for filing of.
1. Construction of section.—This section shows a design to avoid the technicalities involved under section 940. The main design is to compel the prevailing pårties 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.
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 Lancel v, Postlethwaite, 172 Cal. 326, 156 hereunder must be in writing and that ac- Pac. 486. tual notice is not sufficient are not appli- 15. An appeal taken from a judgment cable to section 953a.-French v. Macnider, within six months after entry is within the 28 Cal. App. 67, 151 Pac. 371.
time prescribed by section 941b of the Code 7. A notice of appeal, though defective in
of Civil Procedure, in the absence of any not being several in form, may, under the
showing of service of written notice liberal practice now prevailing, be regarded
entry of judgment upon the appellant.-as sufficient.—Sweet v. Richvale Land Co., Magee, Jr., V. Magee, Sr., 53 Cal. Dec. 115, 29 Cal. App. 111, 154 Pac. 608.
162 Pac. 1023.
16. 8. In an action against five defendants
When an appeal from a judgment is composing a board of trustees of a high
not taken within sixty days after its entry, school district, an appeal from the judgment
its consideration is necessarily confined to
examination of the will not be dismissed upon the alleged in
judgment-roll.sufficiency of the notice of appeal which in
Healy v. Obear, 29 Cal. App. 696, 157 Pac.
569. the title merely describes the defendants as "Charles L. Sanderson et al., Defendants" (without naming each defendant), but
8 941c. the body of the notice states "that the de- 1. Effect of appeal Construction. fendants above named desire to appeal and Where this section speaks of appeals taken do hereby appeal ... from the whole of that pursuant to sections 939, 940, and 941 it certain order . ., and from the whole of the refers to appeals supported by the necessary judgment of the aforesaid Superior Court, undertaking. It is the force and effect of etc."—Hopkins v. Sanderson, 29 Cal. App. such appeals that are imported into appeals 666, 159 Pac. 1064.
taken by the new method.-Estate of Stough, 9. -Service of.-Actual service of a writ
173 Cal. 638, 161 Pac. 1.
the ten notice of the entry of a judgment, order,
Changes in law affecting proor decree is essential to start running the
cedure apply to cases pending and condisixty-day period allowed within which to
tions existing at the time the statutes take appeal.--Huntington Park Imp. Co. v. Park
effect, where no substantial remedies are Land Co., 165 Cal. 429, 132 Pac. 760.
impaired. This rule applies in the case of a 10. In order to escape the necessity of
statutory amendment pending appellate pro
ceedings.-Slye v. Hunt, 29 Cal. App. 117, serving notice of appeal and giving an un
154 Pac, 607. dertaking the appellant must file his notice of appeal within the time fixed herein. If
8 942. he allows that time to go by, and is still within the time allowed under the ola UNDERTAKING ON APPEAL-MONEY method (section 939) he must serve his
JUDGMENT. notice and give his undertaking as required 1-4. Appeal by alternative method-Con. when that was the only method of appeal.
struction, Title Ins. & Trust Co. v. California Devel. 5–7. Liability of sureties. Co., 168 Cal. 397, 143 Pac. 723.
Appenl by new method-Construction. 11. Before a respondent may invoke the
-The filing of a notice of appeal under the limitation of sixty days contemplated by
alternative method in cases where a stay this section as the time within which, after
bond is not required by this and the three notice of the entry of Judgment, an appeal
following sections, is operative to the same may be taken, there must be a formal notice
extent as the filing and service of notice of such entry actually served upon the at
followed by the giving of the three hundred torney of record.-McDonald v. McDonald,
dollar undertaking under the old method. — 168 Cal. 433, 143 Pac. 726.
Estate of Stough, 173 Cal. 638, 161 Pac. 1. 12. Where the appeal is taken more than
2. Upon an appeal taken under the new sixty days after the entry of judgment, and
and alternative method provided by sections it does not appear that any notice of the
941a, b, and c of the Code of Civil Procedure entry of judgment was served the court on
enacted in 1907, from an order appointing appeal may examine whether or not the
the executor of a will, the filing with the evidence sustains the findings.-Blair V.
clerk of the notice of appeal stays all proBrownstone Oil & Ref. Co., 168 Cal. 632, 143
ceedings on the order, without the necessity Pac. 1022.
the giving of the three-hundred-dollar 13. -Time for filing of.-A notice of ap- undertaking, or any stay bond.-Estate of peal taken under the new or alternative Stough, 173 Cal. 638, 161 Pac. 1. method filed with the clerk thirty-one days 3. The provisions of sections 942, 943, 944 after the filing of the judgment, is sufficient. and 945 of the Code of Civil Procedure as to -Martin v. Becker, 169 Cal. 301, Ann. Cas. stay of proceedings upon the perfecting of 1916D 171, 146 Pac. 665.
an appeal apply only where the appellant 14. Statutes limiting the time of appeal has money or other property in his possesare jurisdictional and mand ory, and in the sion or under his control which has been adabsence of an express authorization in the judged by the lower court to belong to the statute itself, a court has no power to ex- respondent, or where the appellant has been tend the time for taking an appeal, or to directed to do some act for the benefit of relieve an appellant from the effect of mis- the respondent.-Halsted V. First Savings fortune, accident, surprise or mistake. Bank, 173 Cal. 605, 160 Pac. 1075.
4. An adjudication of a conditional lia
§ 945. bility which might or might not become a fixed or absolute obligation is not a judg
1. Appeal affecting real property-Underment for the direct payment of
taking, effect of and liability - The
money within the meaning of this section requir
undertaking given under section 945 of the
Code of Civil Procedure operates as a pering the execution of an undertaking to stay the judgment pending appeal. — Colusa &
manent stay of execution pending the apH. R. Co. v. Superior Court, 31 Cal. App. 746,
peal.-Jameson v. Chanslor-Canfield Midway
Oil Co., 173 Cal. 612, 160 Pac. 1066. 161 Pac. 1011.
2. 5. Liability of sureties.—The surety on
Where an undertaking has been given an undertaking given on appeal to stay
pursuant to this section to stay execution execution of a judgment for the return of
pending appeal the supreme court has no inherent
to certain personal property, or its value, and
or statutory power require for the sum of four thousand six hundred
further security as a condition to the mainand eighty-seven dollars and sixty-three
tenance of the stay of execution of the
V. cents with costs, is liable upon the affirm
judgment. - Jameson Chanslor-Canfield ance of the judgment upon appeal, notwith
Mid. Oil Co., 173 Cal. 612, 160 Pac. 1066. standing an amount in cash in excess of the
3. Where an appeal is taken by one pertotal amount of the money judgment was
son, and the undertaking thereon purports paid over by the appellant together with
on its face to be given on an appeal taken all the other remaining property described
by several persons, such undertaking is in the judgment which had not been sold
insufficient to support the appeal, and no by the appellant pending the appeal.-Ham
recovery can be had against the sureties.mond v. United States Fidelity & Guaranty
Fry v. Astorg, 29 Cal. App. 740, 156 Pac. 873. Co., 29 Cal. App. 464, 155 Pac. 1023.
4. No liability is incurred by the surety 6. An undertaking on appeal from on an undertaking on appeal taken by one judgment for the return of personal prop
of several defendants, where the undertakerty, or its value, and for a certain sum
ing recites on its face that it was given of money, is not void, because the amount
as security on an appeal taken by all the is fixed by the parties, instead of by the
defendants in the action.-Fry v. Astorg, court; the sureties are bound by the state
29 Cal. App. 740, 156 Pac. 873. ments in their contract and can not question the truth of such recitals.-Hammond 3 946. v. United States Fidelity & Guaranty Co.,
STAY ON APPEAL. 29 Cal. App. 464, 155 Pac. 1023.
1, 2. Construction of section. 7. When the party in whose favor the
3-8. Stay pending appeal. undertaking was executed had had the
9-11. Supersedeas, writ of. benefit of a stay of execution, the sureties could not be heard to say that the under- 1. Construction.-The obvious purpose of taking was void because all the forms of this section was to excuse a stay bond when the statute, through their omission, were the court below in its discretion shall so not complied with. — Hammond v. United order, where the appellant is a trustee actStates Fidelity & Guaranty Co., 29 Cal. App. ing under and by virtue of some official 464, 155 Pac. 1023.
authority, whether by appointment of the
court or by appointment under a statute as 8 943.
an officer of the court.-Mercantile Trust
Co. v. Miller, 166 Cal. 563, 137 Pac. 913. 1. -Judgment for delivery of document,
2. The superintendent of banks when actappeal - Construction. This section does not apply to a judgment for sale upon the
ing as an officer liquidating the assets of a foreclosure of a pledge.-Southern Pac. Co.
bank and distributing them to its creditors
is a “trustee" and also a person acting in v. Superior Court, 167 Cal. 250, 139 Pac, 69.
"another's right" within the meaning of this 2. An order of the court requiring the
section.-Mercantile Trust Co. v. Miller, 166 sheriff to take into his possession and de
Cal. 563, 137 Pac. 913. liver to the petitioner certain personal prop
Stay pending appeal.-By the appeal, mere fact of perfecting an appeal under
3. erty and documents is not stayed by the
the jurisdiction of the lower court in regard the alternative method without giving the
to all matters relating to the correctness stay bond provided herein.-Bailey v. Supe
or validity of the judgment or order aprior Court, 31 Cal. App. 78, 159 Pac. 990.
pealed from is suspended, with the result that the lower court is without power to
take any action in regard thereto during § 944.
the pendency of the appeal.-Parkside 1. Instrument nullity upon reversal. Realty Co. v. MacDonald, 167 Cal. 342, 139 Where the defendant in an action to enforce Pac. 805. a trust gives a deed to stay execution of the 4. In an action against a bank and a judgment rendered against him and depos- third person to determine the ownership its it with the clerk of the court pursuant of money on deposit in a savings bank, to section 944 of the Code of Civil Proce- and to enjoin the third person from withdure, the deed becomes a nullity in the drawing the deposit, the judgment that the hands of the clerk upon the reversal of the defendant is the owner of the money'and judginent.-United States Oil & Land Co. v. that she do have and recover the same from Bell, 219 Fed. 785.
the bank, is not stayed by the taking of an
appeal from the judgment by the plaintiff stayed by the appeal taken therefrom by the and the giving of the ordinary three hun- other claimant and it is made to appear dred dollar bond for costs, etc., the bank that the respondent is without means. — remaining neutral in the action and not Halstead v. First Savings Bank, 173 Cal. 605, appealing, and the appellant giving no stay 160 Pac. 1075. bond.-Halsted v. First Sav. Bank, 173 Cal.
The power to grant a writ of super605, 160 Pac. 1075.
sedeas exists in cases where the writ is 5. An appeal does not stay the force of a necessary to preserve the status quo so that prohibitive injunction, and the lower court the rights involved in an appeal, when dehas full power to punish a violation of such termined, may not be lost or prejudiced injunction pending the appeal, but it is by reason of the intervening execution of otherwise where the injunction is manda- the judgment, and where the statute regutory.-Wolf v. Gall, 174 Cal. 140, 162 Pac. lating a stay of proceedings on appeal 115.
makes no provisions for such stay in the 6. The bankruptcy of the defendants in particular case.—Halsted v. First Savings an action against a broker to recover se- Bank, 173 Cal. 605, 160 Pac. 1075. curities deposited on a margin contract and their discharge subsequent to the rendition
$ 948. of the judgment against them and the taking 1. Filing new undertaking.Where the of their appeal therefrom does not operate bond fails in substantial respects to comto stay a determination of the appeal, and ply with the statute, and therefore is not upon affirmance of the judgment the plain- effective to stay execution, the appellant tiff is entitled to recover his property or may, at any time before the execution of the assert his rights with respect to the bond judgment, and without any authority from given on appeai. — Hartnett v. Wilson, 31 the appellate court, file another undertakCal. App. 678, 161 Pac. 281.
ing, which, if sufficient, will stay execution. 7. The effect of the perfecting of an ap- -Bradley Co. v. Mulcrevy, 166 Cal. 325, 136 peal is to stay all further proceedings upon Pac. 60. the judgment or order appealed from or matters embraced therein in the court 8 949. below; it operates to remove the subject- 1. Undertakings in other cases — Conmatter of the adjudication from the juris- struction.-The exception as to the sale of diction of the court below pending the perishable property has reference to the appeal, and suspends the power of that case where the order appealed from and court to enforce its order until the appeal directing a sale has been made on the ground is determined.-In re Dupes, 31 Cal. App. that the property is perishable, and con698, 161 Pac. 276.
templates an adjudication or finding to that 8. An appeal taken from an interlocutory effect the part of the court making decree of divorce wherein the custody of such order.-Zappettini v. Buckles, 167 Cal. the children of the marriage was awarded 27, 138 Pac. 696. to the father has the effect of staying all 2. An undertaking under this section will proceedings as to such custody pending the not stay execution of a judgment foreclosappeal, and where the mother has posses- ing a trust deed for a large sum and directsion of them under an order made prior ing the sale of both personalty and realty. to the trial, the court has no jurisdiction The undertaking in such case is that to vacate such order and direct that their provided for in section 945.-Southern Pac. possession be given to the father, until the Co. v. Superior Court, 167 Cal. 250, 139 appeal is determined.-In re Dupes, 31 Cal. Pac. 69. App. 698, 161 Pac. 276.
3. The stay given by virtue of this secSupersedeas, writ of.-A writ of super- tion in case of appeal is effectual only as sedeas will not issue to stay execution on to the judgment in so far as it affects the a judgment pending an appeal from an appellant, requires him to do something order denying a motion to set the judgment for the benefit of the respondent, or permits aside, where it appears from the petition something to be done as to the appellant. that while the attorney who appeared for There is no provision of law requiring a the petitioner in the action in which the stay bond from the appellant as a condition judgment was rendered was not authorized precedent to staying proceedings in the so to do and that the trial of the action and lower court on the judgment appealed from the entry of judgment were had without in so far as the judgment is against the the petitioner's knowledge, and there is no appellant. Any stay bond given under such denial therein that he was duly served with circumstances would be without considerasummons, nor assertion made that he made tion and hence unenforceable.-Halstead v. any arrangement for representation by other First Sav. Bank, 173 Cal. 605, 160 Pac. 1075. counsel.—Bryan v. Superior Court, 169 Cal. 761, 147 Pac. 938.
$ 950. 10. The granting of a writ of supersedeas 1. Record furnished on appeal.-A supis warranted in an action between conflict- plemental bill of exceptions is reviewable ing claimants to money on deposit in on an appeal from a judgment, although not bank, in which the bank remains neutral, reviewable on appeal from an order denywhere there is rendered a simple money ing a new trial.--Title Ins. & Trust Co. v. judgment in favor of one of the claimants California Devel. Co., 171 Cal. 174, 152 Pac. against the bank, and the judgment is not 542.
2. Upon an appeal from an order deny- letter.-McIntosh v. Hunt, 29 Cal. App. 779, ing a motion for a new trial, affidavits 157 Pac. 839. stated to have been used on the motion 11. An appellant may, under section 950 can not be considered where they are not of the Code of Civil Procedure, include the authenticated in any manner. - Moore v. evidence in the record.-Gambetta v. GamPacific Coast Steel Co., 171 Cal. 489, 153 Pac. betta, 30 Cal. App. 261, 157 Pac. 1141. 912.
A defendant, having failed to answer, 3. A bill of exceptions duly proposed and may take his appeal from the judgmentsettled for use on motion for a new trial roll alone.-Gambetta v. Gambetta, 30 Cal. may be used in support of an appeal from
App. 261, 157 Pac. 1141. the judgment, although it was not regularly used on the motion for a new trial. —
8 953a. Vore v. Ephraim, 173 Cal. 245, 159 Pac. 719.
APPEAL FROM SUPERIOR COURT-NEW 4. An appeal from an order denying a
METHOD. motion for a change of the place of trial of an action upon the ground of the con
1, 2. As to purpose of the act.
3-6. Construction of section. venience of witnesses can not be considered on its merits, where the transcript contains
7-10. Notice as to appeal and transcript.
11-14. Service of notice. no certificate of the judge of the court that the
15–20. Transcript-As to what may be inpapers and records which the
cluded in. transcript contains, or any of them, were
21-30. - Authentication or certification, used upon the hearing of the motion.Avello v. Sampson, 28 Cal. App. 324, 152 Pac. 1. As to purpose of act.-The object of 313.
the amendment of August 8, 1915, to sec5. Where an appellant supports his ap- tion 953a of the Code of Civil Procedure peal by the judgment-roll alone, he can not extending the time for filing notice with complain of a failure to find on his allega- the clerk for the making up and preparation tions of new matter. It will be presumed, of a transcript to be used on appeal from in favor of the correctness of the judgment a judgment when a proceeding on motion and findings, that no evidence upon this for new trial is pending, is to enable a phase of the case was in fact presented party to include in his transcript the matto the court.-Parker v. Power, 28 Cal. App. ters material to a review of the action 332, 152 Pac. 935.
of the court on his motion for a new trial, 6. An appellate court will not take cog
and thus to enable the desired review to be nizance of the contents of an affidavit which had.-Schmitt v. White, 172 Cal. 554, 158 has come into the transcript under a cer
Pac. 216. tificate describing it as part of the judg- 2. It was not, however, intended by such ment-roll, when it is not a part of the amendment to give a party who had apjudgment-roll and does not appear to have pealed from a judgment prior to the change been one of the papers used in connection in the law and whose right to such a recwith the order from which the appeal was ord had absolutely expired prior to such taken.-Nolte v. Nolte, 29 Cal. App. 126, date, a right to a new record for the pur154 Pac. 873.
pose of reviewing matters in no way ger7. If a proposed amended answer is not mane to the question of the correctness of incorporated in the record of the proceed- the disposition by the trial court of the ings of the trial, the appellate court can motion for new trial, and material only to not determine whether the lower court was questions involved in the appeal from the right or wrong in refusing permission to judgment as the law stood before
the file it.—Calara Valley Realty Co. v. Smith, change.-Schmitt v. White, 172 Cal. 554, 158 29 Cal. App. 589, 156 Pac. 369.
Pac. 216. 8. Where upon an appeal from a judg
Construction of section.- Where the ment of nonsuit, the evidence is not brought appellant does not follow this section he up in the transcript, the judgment must be must print the transcript and serve and affirmed. - Nicholson v. Leatham, 28 Cal. file copies thereof in the manner provided App. 597, 153 Pac. 965.
by the supreme court rules. The appellant 9. Affidavits in support of a motion for a can not avoid the rule requiring the record new trial on the ground of newly discovered on appeal from the judgment-roll alone evidence can not be considered on appeal, to be printed by giving the clerk a notice, although contained in the printed transcript, purporting to be within the terms of this where not in any manner authenticated as section, to have the judgment-roll prepared part of the record on appeal.-Crofford v. as a typewritten record by the stenographic Crofford, 29 Cal. App. 662, 157 Pac. 561. reporter. This section does not apply to
such a case.—Harpold v. Slocum, 168 Cal. 10. In this action to establish a trust,
364, 143 Pac, 609. alleged error in refusing the admission in evidence of a letter written by the defen
4. An appeal under this and the two dant to the husband of one of the plaintiffs following sections is authorized on an apin reply to a letter written by the latter peal from an order granting a motion to concerning the consummation of an escrow change the place of trial where the proceedarrangement already admitted in evidence, ings at the hearing were not taken down can not be considered on appeal where the by a stenographer, and the evidence subrecord contains no copy of the excluded mitted consisted entirely of the files and