
    [No. 5734.]
    REED v. KIMBALL.
    Dismissal of Appeal.—If an undertaking on appeal is not filed within five days after the service of the notice of appeal, the appeal is ineffectual, and a motion to dismiss it will not lie.
    Appeal from the District Court of the Twenty-second Judicial District, County of Mendocino.
    J udgment for the plaintiff for $908.57. The defendant undertook to appeal. The other facts are stated in the opinion.
    
      Harrison & Lamar, for the motion.
    
      McGarmy & Carothers, per contra.
    
   By the Court :

The respondent moves that the appeal be dismissed, because of the failure of the appellant to file the transcript within the time prescribed by the rules of this Court.

It appears by the certificate of the Clerk of the Court in which the judgment was rendered, that on the 22nd day of March last a notice of appeal was served upon the attorney for the respondent, and that on the 5th day of April next thereafter an undertaking on appeal was filed in the Clerk’s office. The Code of Civil Procedure (sec. 940) provides that “ the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking is filed,” etc.

More than five days having intervened in this case between the service of the notice and the filing of the undertaking, the appeal utterly failed—became “ ineffectual for any purpose"— and is not the subject of a motion to dismiss.

For the reason, then, that no appeal appears to be pending, the motion is denied.  