ง trial, which, in effect, vacates the judgment.—Walden vs. Murdock, 20 Cal., p. 141. 2. Subd. 2.-Dooling vs. Moore, 20 Cal., p. 141. 3. Subd. 3.—An appeal from an order denying a new trial must be taken within sixty days.-Wauggenheim vs. Hook, 35 Cal., p. 216; Lowdy vs. Ellis, 22 Cal., p. 650; Brown vs. Tolles, 7 Cal., p. 398; Peck vs. Vandenberg, 30 Cal., p. 11; Peck vs. Curtis, 31 Cal., p. 207. An appeal from an order refusing to vacate award of arbitrators must be taken within sixty days from date of order.-Fairchild vs. Doten, 38 Cal., p. 286. If an appeal from the judgment is dismissed, the dismissal is not a bar to an appeal from an order refusing a new trial.-Fulton vs. Cox, 40 Cal., p. 101; Fulton vs. Hanna, 40 Cal., p. 278; Waugenheim vs. Graham, 39 Cal., p. 169. After appealing from a judgment, a party may appeal from an order overruling a motion for a new trial, if the latter appeal is taken in time.-Marziou vs. Pioche, 8 Cal., p. 522. Where an appeal is taken, both from a final judgment and an order refusing a new trial, after sixty days from the entry of the order for a new trial, the appeal, so far as the order is concerned, will, on motion, be dismissed.— Lower vs. Knox, 10 Cal., p. 480. An order made by the Court on a motion is a final adjudication upon the subject matter, unless appealed within the time allowed by law, nor can the time for appeal be extended by subsequent renewal of the motion, even if it be varied in its terms, provided it is substantially the same motion. Kittredge vs. Stevens, 23 Cal., p. 283. See, generally, Gray vs. Palmer, 28 Cal., p. 416. 940. An appeal is taken by: 1. Filing with the Clerk of the Court in which the judgment or order appealed from is entered or filed a notice stating the appeal from the same, or some specific part thereof; 2. Filing, at the same time, an undertaking on appeal; and, 3. Serving a copy of the notice of appeal upon the adverse party or his attorney. NOTE.-Sec. 337 of the Practice Act of 1851 read as follows: "The appeal shall be made by filing with the Clerk of the Court, with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, Amended 1873-4. and serving a copy of the notice upon the adverse party or his attorney." And Sec. 348 as follows: "To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars; or that sum shall be deposited with the Clerk with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking shall be filed, or such deposit made, with the Clerk within five days after the notice of appeal is filed." For these two sections Secs. 940 and 941 of this Code have been substituted. 1. SUBSTANCE OF THE NOTICE.-A notice of appeal from a judgment and all orders made in the case is only a notice of appeal from the judgment.-Gates vs. Walker, 35 Cal., p. 289.—An appeal "from all orders and rulings occurring on the trial" is not an appeal from an order granting or denying a new trial.-Day vs. Callon, 39 Cal., p. 593. A notice stating that the appeal is from all orders made by the Probate Court on a certain day is sufficient to cover any appealable order made on the day specified.-Estate of Pacheco, 29 Cal., p. 229. If there is sufficient in the notice to show that the notice and order contained in the transcript are the same intended to be appealed from, the appeal will not be dismissed, although the notice may contain mistakes as to the date of the order or judgment.-Flateau vs. Lubeck, 24 Cal., p. 364. If the notice is signed by an attorney of the Court, the presumption is that he had authority to take such action.-Ricketson vs. Compton, 23 Cal., p. 636. 2. FILING NOTICE OF APPEAL.-It was held, under Sec. 337 of the Practice Act of 1851, that the filing must precede or be contemporaneous with service of notice.-Buffendeau vs. Edmonson, 24 Cal., p. 94; Boston vs. Haynes, 30 Cal., p. 527; James vs. Williams, 31 Cal., p. 211; Lynch vs. Dunn, 34 Cal., p. 518; Foy vs. Domec, 33 Cal., p. 317. And must precede the filing of the undertaking.-Buckholder vs. Byers, 10 Cal., p. 481; Dooling vs. Moore, 19 Cal., p. 81; Carpentier vs. Williamson, 24 Cal., p. 609; Buffendeau vs. Edmonson, 24 Cal., p. 94. Filing and service of notice is indispensable.-Bonds vs. Hickman, 29 Cal., p. 460; Whipley vs. Mills, 9 Cal., p. 641. In Hastings vs. Halleck, 10 Cal., p. 31, it was held, that to constitute an appeal three things were necessary: first, filing the notice; second, service of the same; and, third, filing the undertaking. All of these steps must be taken within the times limited by the statute; that if not so taken, there is no appeal perfected, and the Supreme Court has no jurisdiction of the case. It will be seen, by reference to Sec. 940 of this Code, that the order in which the necessary steps are to be taken has been changed. When the record shows that a notice of appeal was served the same day that it was filed by the Clerk, and the indorsement of the filing precedes the indorsement of admission of service, the inference is that the filing preceded the service.-Wright vs. Ross, 26 Cal., p. 262. Or if the notice of appeal is served on respondents' attorney, and immediately afterwards filed by the Clerk, the service and filing will be regarded as one act.-Id. Affidavits will not be received in the appellate Court to show that a notice of appeal was filed on a different day from that stated in the record.-Boston vs. Haynes, 31 Cal., p. 107; see, also, Loveugano vs. Camarrillo, October Term, 1872. If one of several respondents dies before notice of appeal is filed, a motion to dismiss the appeal as to him must be granted.— Shartzer vs. Love, 40 Cal., p. 93. Where an appeal was taken and perfected after the death of the appellant, it was held: that there was no authority for prosecuting the cause in the name of the deceased, but that all proceedings should have been stayed until the executor or administrator could, by suggestion, have been made a party.-Sanchez vs. Roach et al., 5 Cal., p. 248. 3. SERVICE OF NOTICE.-A party appealing must notify all other parties to the action who have appeared and are interested in opposing the relief sought by appeal. Senter vs. Bernal, 38 Cal., p. 637. The words "adverse party," used in relation to appeals, includes every party whose interest in the subject matter is adverse to a reversal or modification of the judgment, without regard to the position as plaintiff or defendant of the party. Senter vs. Bernal, 38 Cal., p. 637. Service on attorney is sufficient.-Coulter vs. Stark, 7 Cal., p. 244. It must affirmatively appear that the notice was served.-Hildreth vs. Gwindon, 10 Cal., p. 490. Proof of service, and supplying proof of service of notice. See Moore vs. Besse, 35 Cal., p. 184; Towdy vs. Ellis, 22 Cal., p. 650; Doll vs. Smith, 32 Cal., p. 475. 4. WAIVER OF DEFECTS IN NOTICE.-James vs. Williams, 31 Cal., p. 211. 5. WAIVER OF NOTICE.-McLeran vs. Shartzer, 5 Cal., p. 70; Moulton vs. Elmaker, 30 Cal., p. 527; Mokelumne Hill Co. vs. Woodbury, 10 Cal., p. 185. 6. FILING UNDERTAKING.-Elliott vs. Chapman, 15 Cal., p. 383; Bradley vs. Hall, 1 Cal., p. 199; Cum- ing or deposit on appeal. 941. (§ 348.) The undertaking on appeal must Undertak- NOTE.-1. GENERALLY.-Elliott vs. Chapman, 15 2. FORM OF UNDERTAKING.-Canfield vs. Bates, 13 3. STATE AND COUNTY NEED NOT FILE UNDERTAKING.-Warden vs. Mendocino County, 32 Cal., p. 655; People vs. Clingan, Cal., p. 389; Thornton vs. Mahoney, 24 Cal., p. 568. See Sec. 1058 of this Code. ing on appeal from a money judgment. 942. (§ 349.) If the appeal be from a judgment Undertak or order directing the payment of money, it does not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all Amceded 18773-4 Ame d 1875-41. Same. Appeal for delivery damages and costs which may be awarded against the appellant upon the appeal. When the judgment or order appealed from is made payable in a specified kind of money or currency, the undertaking required by this section must be drawn and made payable in the same kind of money or currency specified in such judgment. NOTE.—If, on appeal from an order denying a new trial, a full undertaking on appeal, as provided in Sec. 349 of the Practice Act (Sec. 942 of this Code), is given, it stays execution on the judgment.-Fulton vs. Hanna, 40 Cal., p. 278. An appeal will not be dismissed for insufficiency in the justification of the sureties on the undertaking, where the undertaking was both to render the appeal effectual and to stay execution, and the justification was sufficient for the former purpose.— Dobbins vs. Dollarhide, 15 Cal., p. 374. The undertaking on appeal providing for the liability of the sureties upon the condition of the affirmance of the judgment, operates as a stay. If by mere neglect to prosecute the appeal, and for that reason it should be dismissed, it would work manifest injustice to the respondent if he should be deprived of his rights under the judgment. This result would, however, necessarily follow, if the sureties could be released upon the pretense that the judgment was not affirmed. In many instances this would encourage a fraud upon the respondents.-Karth vs. Light, 15 Cal., p. 327; Chamberlin vs. Reed, 16 Cal., p. 207; Chase vs. Beraud, 29 id., p. 138. This section of the Code conforms in language to the rule of the cases cited supra. In foreclosure cases, if a judgment in personum is rendered against the defendants, and also one enforcing the lien, and an appeal is taken from the whole judgment, in order to stay proceedings upon the judgment, the appellant must file an undertaking for costs, one in double the amount of the personal judgment, and one for the payment of waste and such deficiency as may remain due after the sale of the property, and all these undertakings may be in one instrument, or several, at the option of the appellant.— Englund vs. Lewis et al., 25 Cal., p. 356. 943. (§ 350.) If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order cannot be stayed by appeal, unless the things |