FRANCIS E. STRATTON, Appellant, v. J. M. GRAHAM, Respondent

[No. 9199. Department Two. December 3, 1885.] FRANCIS E. STRATTON, Appellant, v. J. M. GRAHAM, Respondent. Appeal — Deposit in Lieu of Undertaking — When must be Made — Dismissal. — A deposit of money in lieu of an undertaking on appeal must be made within five days after the notice of appeal is served and filed. If made after that time, the appeal will be dismissed. Appeal from a judgment of the Superior Court of Napa County, and from an order refusing a new trial. Motion to dismiss appeal. The further facts are stated in the opinion. Henry H. Davis, for Appellant. Joy & Ham, for Respondent, [MAJORITY — Foote, C.] Foote, C. The record before us discloses this state of facts: That a notice of appeal from the judgment and an order denying plaintiff a new trial was filed and served on the twenty-fifth day of July, 1883. That no undertaking on appeal was filed, nor was the same ever waived by the adverse party in writing; but that according to the certificate of the clerk of the trial court, a sum of money in lieu thereof was deposited with him for the appellant, on the thirty-first day of August, 1883, — more than five days after the notice of appeal was served and filed. Therefore, on the authority of Biagi v. Howes, 63 Cal. 384, Francis E. Stratton, claiming to appeal under section 940, Code of Civil Procedure, without having in effect done so, should be refused a hearing by this court, Belcher, C. C.,-and Searls, C., concurred. The Court. — For reasons given in the foregoing opinion, the appeal is dismissed.