WILLIAM ARAM, Trustee of the Orchard Street District Public School, and JAMES MURPHY, BERNARD S. FOX, MARK FARNEY, and JOHN R. MERRITT v. MOSES SHALLENBERGER, HENRY ROBINSON, and SAMUEL Q. BROUGHTON, 42 Cal. 275

By Wallace, J., Temple, J., concurring: The appeal is taken from an order of the District Court entered in the cause. It is claimed by the respondent that the order itself is not the subject of appeal, and that if it were, an appeal has not been properly taken and perfected. It is unnecessary, however, to consider the question as to whether or not the order is the subject of an appeal, as I think the appeal must be dismissed upon the other ground.

The order was made and entered on June 5th, 1871; and on the seventeenth of June a notice of appeal was filed, but had not been served at or before the time at which the undertaking on appeal was subsequently filed. Of course the filing of an undertaking on appeal, without service of the notice of appeal, was utterly nugatory.

It seems to have been so considered by the counsel for the appellant, for on the second day of August following (and within sixty days from the entry of the order in question,) he caused a copy of the notice of appeal (which had remained on file ever since June seventeenth,) to be served upon the respondent’s attorney, and within five days after such service he filed an undertaking on appeal in proper form.

But as the filing of the first undertaking was inoperative, because filed before service of the notice of appeal, so the filing of the second undertaking was also inoperative to perfect the appeal taken, inasmuch as the last undertaking, though filed within five days after service of the notice, was not within five days after the filing of the notice of appeal. (Pr.

Act, Sec. 348.) The times at which, and the successive order in which the several steps are to be pursued to take and perfect an appeal, are distinctly prescribed by statute, and must be observed; otherwise the appeal must fail here, if timely objection be taken by the respondent. We have no authority to relieve a party from the consequences of a failure in these respects.

Under the Act of 1861, p. 589, Sec. 3, it is true that relief may be had against the insufficiency, in point of mere form, of the notice filed and served, or of the undertaking filed; in other words, an appeal, if taken, may, upon compliance with the provisions of the Act of 1861, be supported, though it had been insufficiently taken in the first instance; but there is a clear distinction between an appeal insufficiently taken and one not taken at all.

Were the statute of 1861 construed to afford relief in cases in which the steps as pursued were themselves utterly abortive, it is obvious that the provisions of the Practice Act prescribing the modus of taking and perfecting an appeal would be practically abrogated. The filing of the notice of appeal must always precede the service—the service of the notice must precede the filing of the undertaking, which filing must itself be within five days after the filing of the notice of appeal. (Pr.

Act, Sec. 348.) Because the undertaking in this case was not filed within five days after the notice of appeal was filed, the appeal should, in my opinion, be dismissed; and it is so ordered. By Rhodes, 0. J., Crockett, J., concurring: We concur in the judgment on the ground that the order in question is not the subject of an appeal. Mr. Justice Sprague expressed no opinion.