Putnam, J. We think the appeal should not be dismissed for the defendant’s failure to file an undertaking. Although an undertaking seems to be required, (Code Civil Proc. §§ 1340, 1341, 2260,) yet as the defendant has 60 days to perfect his appeal, which time has not expired, andas he is not moving the case, his time to file the undertaking has not yet elapsed, and hence the motion on that ground is premature.
But section 1304 Code Civil Proc., provides that an appeal cannot be taken from an order made by a judge out of court unless entered in the clerk’s office, and this order, it appears, was not so entered. Therefore, on this ground, the appeal should be dismissed. It seems, however, that the plaintiff has been irregular in proceeding under the order before its entry, and may, therefore, have misled the defendant as to its entry. We think the proper disposition of the case is to dismiss the appeal, without costs.
This will not prevent the defendant, if he desires, from taking a new appeal, and giving the undertaking required by the Code. All concur.
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