ROBERT R. FOGEL, Respondent, v. WILLIAM SCHMALZ et al., Appellants

[No. 13617. In Bank. February 26, 1890.] ROBERT R. FOGEL, Respondent, v. WILLIAM SCHMALZ et al., Appellants. Appeal'—Dismissal — Interlineations in Transcript. —Interlineations and erasures in the printed transcript on appeal, made before the transcript was certified by the clerk or filed, and which do not in any respect render the record difficult to be read or understood, will not render the transcript so irregular in character as to call for a dismissal of the appeal. Id.—Filing of Undertaking — Exception to Sureties —New Undertaking. .— If an undertaking on appeal is filed on the day the appeal was taken, and upon exceptious filed to the sufficiency of the sureties, a new undertaking is filed within twenty days thereafter, the appeal will not be dismissed on the ground that the undertaking was not filed within time. Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court. Henry H Davis, for Appellant. H. H. Lowenthal, for Respondent. [MAJORITY — Paterson, J.] Paterson, J. — Respondent has submitted a motion to dismiss the appeal herein on several grounds. The transcript does not in some respects conform strictly to the rules of this court, but the defects are matters of form, and not so irregular in character as to call for a dismissal of the appeal. The interlineations and erasures were made before the transcript was filed or certified to by the clerk, and do not in any respect render the record difficult to read or understand. Another ground of the motion is, that ihe undertaking on appeal was not filed within time. The certificate of the clerk, however, filed herein with the appellant’s affidavit in opposition to the motion, shows that an undertaking on appeal was filed in the court below on the day the appeal was taken, viz., on September 1, 1888, but plaintiff’s attorney having filed exceptions to the sufficiency of the sureties on the sixth day of September, 1888, another undertaking—the one set forth in the transcript—was given, and approved within twenty days thereafter. Motion denied. McFarland, J., Fox, J., Sharpstein, J., and Thornton, J., concurred.