
    Blore v. Hockaday.
    .The best that' can be said of an order that fixes the amount of an undertaking, but not the time in which it is to be filed is, that by intendment, it is an order to file the undertaking instanter.
    
      Appeal from. District Court of Boulder County.
    
    The case is stated in the opinion.
    Mr. Orris Blake and Mr. Richard H. Whitley now moved to dismiss the appeal.
    Mr. Platt Rogers, contra.
    
   Per Curiam.

The order made by the judge in vacation fixed the amount of the undertaking, but did not fix in terms a time within which the undertaking should be filed. The undertaking was filéd fourteen days after the date of the order, and after service of notice of appeal.

Section 351 of the Code provides that the amount of the undertaking and the time within which it shall be filed shall be prescribed by the court or judge. Exercise of the power here conferred upon the court or judge is antecedent and essential, and we cannot see how in its absence the appellant can proceed as of course to file his undertaking at any time within the six months.

The best that can be said of an order that fixes the amount of an undertaking but not the time in which it is to' be filed is that by intendment it is an order to file the undertaking instanter. Any other holding would result in hardship to the appellee "and leave the provisions of the section nugatory. It would allow the appellant, in the absence of an order of the court or judge fixing the time within which the undertaking shall be filed, the whole period prescribed by law in which appeals may be taken, and practically necessitate the attendance of the. appellee at the clerk’s office every day of that period if he would avail himself of the right to except to the sufficiency of the sureties, given by section 358 of the Code.

The motion to dismiss is allowed. .

Dismissed.  