Freese

This is a motion to dismiss appellant’s appeal, which grows out of the following facts: Appellant’s notice of appeal from an order of court made and given on the thirteenth day of March, 1899, was served and filed on the fifteenth day of March, 1899. On the fifth day thereafter—that is, on the twentieth day of March, 1899—the appellant procured to be executed an undertaking upon appeal reciting that, whereas Margaret J. Bullard has appealed to the supreme court, etc., that in consideration of the premises and of such appeal, etc. This undertaking bore date the twentieth day of March, 1899, and the jurat of the notary thereon is of the same date. On the twenty-first day of March, 1899, appellant’s attorney served and filed a second notice of appeal, and on the following day, March 22, 1899, this undertaking was filed. The first appeal had lapsed for failure to file the undertaking within the statutory period, and this motion to dismiss is directed against the second appeal upon the ground that no undertaking thereon had been filed. To this appellant makes answer that until the filing of the undertaking it has no force, effect, or validity, and that when filed it is an undertaking…