DocketNumber: Docket No. 5156.
Citation Numbers: 235 P. 738, 71 Cal. App. 532
Judges: TYLER, P.J.
Filed Date: 3/5/1925
Status: Precedential
Modified Date: 1/12/2023
Application for a writ of mandate to compel the respondent, Superior Court, to dismiss an appeal.
The petitioner, a corporation, on the fifth day of November, 1924, commenced an action in the justice's court against *Page 533 one Antonio Pina, and recovered a judgment in the sum of sixty dollars and costs. Thereafter on the eleventh day of December, 1924, defendant filed a notice of appeal on both questions of law and fact, together with an undertaking in the sum of one hundred dollars, and a further undertaking to stay the execution of the judgment. On the thirteenth day of December petitioner filed and served upon defendant a notice of exception to said undertaking on appeal, wherein defendant was notified that the sufficiency of the sureties was excepted to by petitioner, and that he further excepted to the form and sufficiency of the undertaking. The sureties on said undertaking, or other sureties, failed to justify within the five days after the service of the notice as provided for by statute, but on the sixteenth day of December defendant presented a new undertaking on appeal, without giving any notice to petitioner. This undertaking was approved by the justice, but also without notice to the petitioner. Thereafter, on the nineteenth day of December, all papers in the action were certified to by the clerk of the justice's court and filed in the Superior Court. Petitioner thereupon served upon defendant a notice to dismiss said appeal. The motion was premised upon failure of the sureties to justify under the original undertaking. The motion was denied, and this proceeding was thereafter instituted.
[1] The case comes squarely within the ruling in Wood v.Superior Court,
Respondent seeks to avoid the effect of these decisions because of the fact that the notice of justification also excepted to the form and sufficiency of the undertaking. The bond is not before us. The question of its sufficiency was a matter that the court could have inquired into at the time of the justification of the sureties. Defendant's failure to justify in accordance with the notice rendered his appeal ineffectual (Cracken v. SuperiorCourt,
Knight J., concurred.