Commercial Bank of Santa Ana v. Wells

ALLEN, P. J. Motion to dismiss appeals. The notice of appeal was from the judgment and from an order denying a new trial.. The only undertaking filed was conditioned to “pay all costs and damages which may he awarded on the appeal or on a dismissal thereof, not exceeding three hundred dollars.” It is not possible to determine which appeal is referred to in the undertaking. “It is so ambiguous that it must be regarded as if none had been filed.” (People v. Center, 61 Cal. 191; Home & Loan Associates v. Wilkins, 71 Cal. 626, [12 Pac. 799].) The fact that the time had elapsed within which one of the appeals should be taken is of no consequence. The notice referred to the judgment and order, both of which were appealable. A different rule applies when the notice relates to a nonappealable order. (Wadleigh v. Phelps, 147 Cal. 140, [81 Pac. 418].) The application to file a new undertaking must be denied. ‘ ‘ To allow a new one to be filed would be, in effect, to permit a new appeal to be perfected after the time fixed by law.” (Home & Loan Associates v. Wilkins, 71 Cal. 626, [12 Pac. 799].) Application to file undertaking is denied and the appeals-dismissed. Shaw, J., and Taggart, J., concur.