Richter v. Eagle Life Ass'n

PER CURIAM. — The plaintiff recovered a judgment by default against the defendant for the sum of $2,445, together with costs, which judgment was entered on the 28th day of June, 1899. On the 8th day of January, 1900, the court below made and caused to be entered an order denying the defendant’s motion to vacate and set aside the judgment. On the 10th day of March, 1900, the defendant filed and served its notice of appeal from the judgment and from the order of January 8th; and on the 13th day of March, 1900, it filed an undertaking, in which the sureties, after reciting that the defendant is about to appeal to this court from the judgment and from the order, undertake and promise on the part of the defendant that it will pay all damages and costs which may be awarded against it on the appeal or on a dismissal thereof, not exceeding the sum of $300. The plaintiff now moves to dismiss the attempted appeal from the order of January 8th upon the ground that it was not taken within 60 days after the entry of the order. The motion will be granted. Section 1723 of the Code of Civil [348] Procedure provides, among other things, that an appeal may be taken from any special order made after final judgment within 60 days after the order is made and entered in the minutes of the court or filed with the clerk. More than 60 days elapsed between the entry of the order and the giving of the notice of appeal therefrom. The plaintiff moves that the attempted appeal from the judgment be also dismissed for the reason that the undertaking is void. The supposed appeals are from a judgment and a special order made thereafter, other than an order granting or refusing a new trial; the undertaking is in the sum of $300, and is conditional for the payment of the damages and costs of the appeal, without specifying to which of the appeals the undertaking applies. Upon the authority of Creek v. Bozeman Waterworks Co., 22 Mont., 327, 56 Pac. 362; Murphy v. Nor. Pac. Railway Co., 22 Mont. 577, 57 Pac. 278; and Washoe Copper Co. v. Hickey, 23 Mont., 319, 58 Pac. 866, the principles of which are approved and reaffirmed, the motion must be granted. The appeals are therefore dismissed. Dismissed.