Mokelumne Hill Canal & Mining Co. v. Woodbury
Mokelumne Hill Canal & Mining Co. v. Woodbury
Opinion of the Court
Terry, C. J., concurring.
The notice of appeal, and the undertaking on appeal, were filed on the 16th day of December, 1857, and the notice served on the respondent the next day; but the respondent having excepted to the sufficiency of the sureties within the five days after the filing of the undertaking, he was not injured by a failure of appellant to serve notice of appeal on the day the undertaking was filed. The undertaking on appeal was sufficient, under section three hundred and forty-eight of the Code, though insufficient to stay the issue of the execution.
1. We think the Court below erred in excluding the question put by defendant’s counsel to the witnesses, Andrews and Mc-Kajq touching their interest in the event of the suit.
2. The first and second instructions given by the Court, at the request of the plaintiffs, were erroneous, under the decision of this Court in the case of The Bear River Company v. The York Company. (8 Cal. Rep., 327.) The opinion in that case was rendered after the most mature and anxious consideration. It is but just to say that the present case was tried in the Court below before the decision in that case was rendered.
It is unnecessary to notice the other assignments of error.
Judgment reversed, and cause remanded.
Reference
- Full Case Name
- MOKELUMNE HILL CANAL AND MINING COMPANY v. WOODBURY
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- Syllabus
- Where a notice of appeal to the Supreme Court and undertaking were filed in the clerk's office on the sixteenth of December, and on the next day a copy of the notice was served on the respondent, who, within five days after filing the undertaking, excepted to the sufficiency of the sureties to the undertaking : Meld, that the respondent was not injured by the failure of the appellant to serve a copy of the notice of appeal on the day the undertaking was filed. Where the sureties to an undertaking on appeal to the Supreme Court, justify in a sum less than double the amount specified in the undertaking, but more than double the amount of $300, such undertaking is sufficient, under section 348 of the Code, though insufficient to stay the issuance of the execution. The principles decided in the case of the Bear River and Auburn Water and Mining Co. v. The New York Mining Co., (8 Cal. R., 327,) applied.