¶1concurring. — I concur in what is said in the opinion as to the filing of the undertaking on appeal before the notice of appeal was served.
¶2As to the waiver, the code (Code Civ. Proc., sec. 948) provides that the undertaking on appeal may be waived “ by the written consent of the respondent.” The legal effect of this provision is, that it can be waived in no other way.
¶3Does the stipulation in writing to put the case on the calendar out of its order for hearing show such consent ? For unless it does, it is not a waiver within the words of the statute. It seems to me that it does not, as it does not appear that the respondent’s counsel, when he signed the stipulation, contemplated giving such consent. The stipulation above mentioned was signed with another and different object and intent, and to predicate of it that it consented that no undertaking on appeal should be filed would be to attribute to it an intent entirely foreign to the intent for which the stipulation was entered into, and which was in the minds of the parties when it was executed. Where an intent plainly appears, another and a different one cannot be implied.
¶4I therefore concur in the judgment dismissing the appeal.