Alvord v. McGauhy

Per Curiam. On the 19th day of December, A. D. 1877, Alvord caused to be served upon the attorney of the plaintiff below a notice of appeal. The notice was not filed in the office of the clerk of the court until two days later. In taking an appeal, the first essential act without which it will have no validity, is the filing of the notice thereof. Unless the filing of the notice either precedes, or is cotemporaneous with the service thereof, it will be ineffectual. Hastings v. Hallack, 10 Cal. 31; Buffendean v.Edmundson, 24 id. 94; Harston’s Practice, § 940, note. The undertaking was filed two days before the filing of the notice of appeal. No appeal was pending. The undertaking had therefore no office to perform. Carpentier v. Williamson, 24 Cal. 609. . Motion to dismiss appeal is allowed. Dismissed.