Spinetti v. Brignardello

Department No. 2, by the Court (from the Bench): This is a motion to dismiss an appeal. The judgment in the Court below was entered January 28th, 1879. On the following day, defendants gave notice of appeal. July 14th, 1879, the appeal was dismissed by this Court, on the ground that no transcript was served or filed within the time prescribed .by law. The order of dismissal did not state that it was without prejudice to another appeal. December 27th, 1879, defendant C. R. Splivalo gave notice of appeal, and the transcript was filed February 24th, 1880. The motion is to dismiss the last appeal. Section 954 of the Code of Civil Procedure provides for dismissing an appeal for failure to furnish the requisite papers, and § 955 provides that the dismissal of an appeal is in effect an affirmance of the judgment, unless the dismissal is expressly made without prejudice to another appeal. The judgment being thus declared by the law to be affirmed, no subsequent appeal can be taken. The motion is granted.