JUDGES: Foote, C. Belcher, C. C., and Searls, C., concurred.
OPINION
FOOTE, Judge
The record before us discloses this state of facts: That a notice of appeal from the judgment and an order denying plaintiff [8 P. 711] 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.
The Court. -- For reasons given in the foregoing opinion, the appeal is dismissed.