Kerschner v. Smith

McBEIDE, C. J. This is a motion to dismiss'an appeal for the reason that the undertaking was not filed within ten days from the filing of the notic 3 of appeal. The defendant in this case served his notice of appeal on the seventh day of February, 1925, and on the nineteenth day of February, 1925, he filed his undertaking, which was duly served on the plaintiff at that date. The plaintiff moves now to dismiss the appeal on the ground that the undertaking was not served within ten days from the filing of the notice of appeal. But, as it appears that the undertaking was served on the plaintiff’s attorney on the nineteenth day of February, 1925, the plaintiff is within Eule No. 23 of this court, which requires all motions to be filed within ten days after a party or his attorney shall have obtained knowledge of *471 the failure of the adverse party in any particular. The undertaking was, in fact, several days late, but, as plaintiff had knowledge of it on the nineteenth day of February, and did not file his motion to dismiss until March 26th, his motion comes too late and is therefore overruled. Motion Overruled.