
    Alvord et al. v. McGauhy.
    The filing of a notice of appeal must precede or be cotemporaneous with the service thereof. An undertaking filed two days before filing notice of appeal has no office to perform.
    
      Appeal from County Court of Ouray County.
    
    Messrs. Miles & Andrews appeared specially for appellee, and now move to dismiss the appeal.
   Per Curiam.

On the 19th day of December, A. D. 1877, Alvord caused to be served upon the attorney of the plaintiff below a notice of appeal. The notice was not filed in the office of the clerk of the court until two days later. In taking an appeal, the first essential act without which it will have no validity, is the filing of the notice thereof. Unless the filing of the notice either precedes, or is cotemporaneous with the service thereof, it will be ineffectual. Hastings v. Hallack, 10 Cal. 31; Buffendean v.Edmundson, 24 id. 94; Harston’s Practice, § 940, note.

The undertaking was filed two days before the filing of the notice of appeal. No appeal was pending. The undertaking had therefore no office to perform. Carpentier v. Williamson, 24 Cal. 609.

. Motion to dismiss appeal is allowed.

Dismissed.  