The opinion
In the opinion in this case we held that the undertaking given on June 5, 1906, was void for uncertainty because at that time the two notices of appeal, given May 31, 1906, and June 4, 1906, respectively, were both running and capable of being perfected and the undertaking did not specify which notice it was intended to support. We also held that the undertaking of June 9, 1906, was valid because at that time the supposed separate appeal of May 31, 1906, had lapsed and there was then but one appeal in existence to which the undertaking could be taken to refer, namely, that taken by the notice of June 4, 1906.
In the petition for a rehearing our attention is, for the first time, called to the statute of June 3, 1906, whereby any act which, according to the law relating to it, should have been done in the month of June, 1906, could lawfully have been done on or before the tenth day of July, 1906. (Stats, 1906, p. 8.) The effect of this statute is that the time for filing an undertaking on appeal, in pursuance to the notice of appeal of May 31, 1906, had not expired on June 9, 1906, and the undertaking on that day would have been good if intended to support either notice, and as it did not specify the notice to which it related it was subject to the same defect as that of June 5. Upon this proposition the respondents, in their petition for rehearing, contend that the appeal under the notice of June 4 should also have been dismissed.
In reaching the conclusion that the first undertaking was invalid and the second one valid we cited a number of decisions to the effect that where appeals have been taken from two or more orders or judgments, and an undertaking is filed which, by its terms, could apply to either, but, which fails to designate the one to which it is intended to apply, it is void as to both. Not having in mind the statute above referred to, we assumed for the purpose of the decision, that this rule was applicable to this case.
On further consideration we are satisfied that the rule of those decisions does not apply to the facts of this case and should not be extended to include it. Without exception the decisions establishing that rule refer to cases in which two or *Page 259
more appeals had been taken, each from a separate and distinct order or judgment, as, for example, from an order denying a motion for new trial and from an order re-taxing costs, or from a judgment and from an order refusing to set aside a default. In each case there were in fact, or in effect, two notices of appeal, each relating to a separate matter, each requiring a separate or distinct undertaking, and each at the time capable of being made effectual by a valid undertaking. In this case the facts are materially different. So far as this point affects the case, there was but one judgment, from certain parts of which appellants sought and intended to appeal. The two notices of appeal refer only to this one judgment and specify identically the same parts thereof. They were indeed identically the same, word for word. The only mark by which they could be distinguished from each other was the different date which occurred after the signature of the appellants' attorneys. Either proceeding would have to be supported by the same record. So far as we can perceive, it would be entirely immaterial to the sureties whether the undertaking was meant to support one notice, or the other, or both, for each would be an appeal by the same parties from the same parts of the judgment and served upon the same parties as respondents. The effect would be the same in all particulars. The time for filing the transcript in this court might have been different if there had been no proceedings then pending for a new trial, or to settle a bill of exceptions. Such proceedings were in fact pending, and, consequently, the transcript under either notice of appeal would be due at the same time, that is, under our rule, within forty days after the determination of the motion for a new trial, an event which occurred on January 9, 1907. The respondents would not even be prejudiced by the necessity to determine which of the undertakings they would elect to rely on, for both were filed after the two notices of appeal were filed, the amount of each was the same, the surety was the same, the liability would be the same and would depend upon the same breach, and both could be joined in one complaint. The statute of limitations therefore would begin to run at the same time in either case.
At the time the first notice was given, and before the giving of the second, a series of legal holidays, declared by the *Page 260
governor, had extended the time for taking the appeal, which otherwise would have expired on May 31, 1906, so that it did not expire until June 3, 1906. On that day the statute above referred to again extended the time to July 10th. It follows that the respondents could not object that either notice was filed too late, and in that respect also the difference between the two notices is to them immaterial. We are reminded by this fact that these holidays had caused much uncertainty in the minds of the profession as to the right to take an appeal while they continued, and that the terms of the act extending the time were probably not well understood at the time the appellants were required to take these proceedings. In such circumstances the courts should not be too insistent upon the observance of trivial and useless technicalities. The objections to the undertakings are about as barren of substantial foundation or merit, or even of technical importance, as can well be conceived.
Our conclusion is that the two notices and undertakings constituted, in substance, but one appeal from the parts of the judgment referred to, and that the last in point of time were in effect mere repetitions of the first, taken out of abundance of caution because of the uncertainty in regard to the effect of the first proceeding, and that this court has jurisdiction of that appeal.
As the judgment dismissing the supposedly distinct appeal of May 31, 1906, has already been made by this court and the case can be as well presented and the court has jurisdiction, without aid from that notice, it is unnecessary to make any change in that judgment. The dismissal will serve to dispose of the notice of May 31st and the undertaking of June 5, 1906. The appeal will rest on the notice of June 4 and the undertaking of June 9, 1906. And this, we presume, was precisely what the appellants and their surety intended. It would have been more regular to have stricken out the first notice and undertaking, leaving the appeal to stand on those filed last, but the irregularity of the other method is wholly immaterial in the present case and too trifling to require a change in the order already made.
The petition for rehearing is denied. *Page 261