Schurtz

The appellant Kerkow gave notice of an appeal from the judgment,- and from the order denying him a new trial. He gave an undertaking on appeal from the judgment alone. No reference was made in the undertaking to the order denying the new trial, or the appeal therefrom. After the time provided by law for giving the undertaking on appeal in the court below, the said appellant applied to the chief justice to approve an undertaking to be filed in this court. The undertaking was approved by the chief justice, and subsequently filed. The respondent moves to dismiss the appeal, on the ground that no bond was filed in time in the court below, and no attempt having been made to file such bond, the one approved by the chief justice and filed in this court could not be effective.

An appeal is taken by serving and filing a notice of appeal within the time prescribed by law. But the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed, or a deposit of money be made, or the undertaking be waived by the adverse party in writing. (Code Civ. Proc., sec. 940.)

The giving of - the undertaking is necessary to confer…