Opinion
Appeal from the County Court of Nevada.
Action commenced November 16th, 1859, in a Justice's Court, upon two promissory notes for one hundred dollars each, dated May 14th, 1859, and drawing interest from date at the rate of three per cent. per month--plaintiff claiming as due three hundred and eighty dollars. The case was tried and plaintiff had judgment. Defendant appealed to the County Court where plaintiff, on the nineteenth of January, 1861, had verdict and judgment for four hundred and sixty-five dollars and costs. Motion for new trial having been overruled on the twenty-fifth of February, defendant, on the twentieth of March, 1861, filed with the Clerk a notice of appeal and served plaintiffs with copy the same day. The undertaking on appeal was filed March 18th, 1861. In the Supreme Court, respondent moved to dismiss the appeal.
COUNSEL
Geo. Cadwalader, for the motion, cited Buckholder v. Byers, (10 Cal. 481) to the point that, the undertaking having been filed before the notice of appeal, the appeal must be dismissed.
McConnell, contra.
JUDGES: Field, C. J. delivered the opinion of the Court. Baldwin, J. and Cope, J. concurring.
OPINION
FIELD, Judge
The appeal in this case is dismissed upon the authority of Buckholder v. Byers (10 Cal. 481). The dismissal is without prejudice to a second appeal. If a second appeal be taken, the transcript on file can be used with the like effect as if brought up with it.