In the petition for rehearing of this cause before this court, counsel for the respondent, while conceding that there is an appeal from the order denying the defendant's motion for a new trial, insist, as they originally insisted, that there is no appeal from the judgment. The judgment was entered on October 4, 1911. The notice of motion for a new trial was served and filed on the fourteenth day of October, 1911, from which circumstance it is assumed that the defendant must have had actual notice of the rendition and entry of judgment at that time. We think this assumption is correct, and that the defendant must necessarily have had such notice of the fact of the entry of judgment, otherwise the intention to move for a new trial would not have been noticed. The appeal from the judgment was taken on February *Page 599 1, 1912, a little over four months after the date of the entry of the judgment. Under section 941b of the Code of Civil Procedure the appeal from the judgment is required to be taken within sixty days from the notice of the entry of judgment. It has been held that, under said section, neither a notice of the appeal from the judgment to the adverse party nor an undertaking on appeal is required. (Estate of McPhee, 154 Cal. 385, 392; Mitchell v. California etc. S. S. Co., 154 Cal. 731, 733.) But it is very clear that, if the defendant sought to take its appeal from the judgment under that section, it failed in its attempt to do so, since it is a requirement of said section that such appeal must be taken within sixty days after notice of the entry of judgment.
By section 939 of the Code of Civil Procedure — one of the sections prescribing the former exclusive method of taking an appeal from a judgment and which method of so appealing may still be resorted to — it is provided that an appeal from the judgment may be taken within six months after the entry of judgment. Section 940 of the same code provides, however, that an appeal so taken "is ineffectual for any purpose, unless within five days after service of the notice of appeal, an undertaking be filed," etc., "to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof," etc. (Id., sec. 941.)
The appellant having failed to file an undertaking as prescribed by those sections, it is claimed that, if its appeal from the judgment was attempted under the old method, it has also failed in such attempt.
We are not prepared to say that, so far as an undertaking is concerned, the provisions of sections 940 and 941, requiring and pointing out the requisites of such obligation on the part of the appealing party, should not be observed in order to render an appeal from the judgment available to such party. We shall, therefore, treat the attempted appeal from the judgment here as futile and consequently not reviewable.
But the question whether the findings are supported by the evidence may be reviewed on the appeal from the order, and a review of that question is all that is involved in the decision of this court on this appeal. In the former opinion we held that the evidence does not support the finding that the cause of action declared upon in the first action by the plaintiff *Page 600 against the defendant here was not the same as the cause of action relied upon in the present action, but that, to the contrary, the evidence disclosed that the cause of action stated in both the complaints was the same, although the remedies through which said cause of action was sought to be asserted were different. It is thus plainly apparent that, as stated, the sole question discussed and decided by the former opinion was whether certain findings, vital to the judgment, were sustained by the proofs, and, as declared, such question is obviously one that is reviewable on an appeal from the order.
Upon the main question, this court has been unable to take any other view than that the facts as disclosed by the evidence present clear grounds for the application of the rule ofres adjudicata.
In accordance with the views herein set forth, the judgment heretofore entered herein will be, and the same is hereby, amended so that it will read: "The appeal from the judgment is dismissed and the order denying defendant's motion for a new trial is reversed."
The petition for rehearing is denied.
Burnett, J., and Chipman, P. J., concurred.