#### HAHN, Respondent, *v.*JAMES et al., Appellants.

(No. 1,537.)

(Submitted October 28, 1901.

Decided October 29, 1901.)

*Appeal*— TJndertaleing *on Appeal*— Failure *to File*— Subsequent *Filing in Supreme Court*— Sufficiency.

Code of Civil Procedure, Sec. 1740, providing tilat no appeal shall be dismissed for insufficiency of the undertaking, if a good undertaking approved by a justice of the supreme court be filed before the hearing on motion to dismiss the appeal, refers only to a case where an insufficient undertaking has been filed in trial court, and does not embrace a case where no undertaking whatever has been filed within the time limited by law. • .

*51*Appeal from District Court, Deer Lodge County; Welling Napton, Judge.*

AotioN by Frank Habn against Jobn W. James and Leon Beaudry. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Motion to dismiss the appeal from the order denying a new trial.

Motion granted.

*Messrs. Walsh & James,*for Appellants.

*Mr. N. P. Napton,*for [Respondent.

MR. JUSTICE PIGOTT

delivered the opinion of the court.

The respondent moves the dismissal of the purported appeal from the order denying the motion for a new trial for the reason that an undertaking to effectuate the appeal was not filed with the clerk of the district court wherein the action was tried.

From the record it appears that on February 21,1900, the appellants filed and served their notice of appeal from a judgment entered September 30, 1899, and from an order denying their motion for a new trial, entered February 7, 1900, and that they filed an undertaking to perfect the appeal from the j'udgment. The undertaking made no reference whatever to the order refusing a new trial, nor has there been filed with the clerk of the court below any undertaking on appeal from such order. It does not appear that a deposit was made in lieu of the undertaking required, nor is it shown that the respondent waived the giving of such an undertaking.

In the absence of a waiver or of a deposit of money, to1 perfect an appeal the undertaking must be filed within the time limited by the statute; an omission in this regard renders the attempted appeal wholly ineffectual. *(Hines*v. *Carl,*22 Mont. 501, 57 Pac. 88.) Upon the authority of *Hurley*v. *O’Neill,*24 Montana, 293, 61 Pacific Reporter, 658, the motion must be granted.

On October 18, 1901, and before the hearing upon this motion, the appellants filed with the clerk of this court an under*52taking .on appeal from tbe order denying a new tria}, approved by tbe chief justice; and tbe appellants suggest that tbe motion should therefore be denied. Section 1740 of tbe Code of Civil Procedure provides that “no appeal can be dismissed for insufficiency of tbe undertaking thereon, if a good and sufficient undertaking approved by a justice of tbe supreme court, be filed in tbe supreme court before tbe bearing upon motion to dismiss tbe appeal.” This section permits a new undertaking to be approved and filed when one was filed in tbe court below which is, or is deemed to be, insufficient, and has m> reference to cases where there was no undertaking filed or where tbe undertaking was for any reason void. To allow tbe undertaking which was filed on October 18 to perform tbe function of an undertaking which should have been, but was not, filed in tbe court below, would be to permit an appeal to be effectuated after tbe time prescribed by statute. In respect of this matter tbe case is governed by *Creek*v. *Bozeman Waterworks Co.,*22 Montana, 327, 330, 56 Pacific Reporter, 362.

Tbe appeal from tbe order denying the motion for a new trial is dismissed for want of jurisdiction.

*Dismissed.*