Stewart v. Superior Court

[64]

SPENCE,

J.—This is a proceeding in mandamus to compel the Superior Court of Los Angeles County to hear an appeal from the Justice’s Court of El Monte Township.

Petitioner was the defendant in the justice’s court action and judgment was rendered against him on November 3, 1944. He served and filed his notice of appeal to the superior court on November 29, 1944, and on December 1, 1944, he filed in the justice’s court his undertaking on appeal. Some time later written notice of the filing of the undertaking was served upon plaintiff in the action. The date of such service is in dispute— December 29, 1944, according to petitioner’s recital as against January 9, 1945, according to affidavit of plaintiff’s counsel. Meanwhile, and on December 20, 1944, the case papers were duly transmitted to the superior court and on January 9,1945, plaintiff moved therein to dismiss the appeal. The motion was denied. On November 16, 1945, the ease was assigned for trial to respondent judge and the latter, upon motion of plaintiff, dismissed the appeal for lack of jurisdiction as related to the service of the written notice of the filing of the undertaking.

Petitioner maintains that he has followed the jurisdictional steps prescribed by the Code of Civil Procedure for taking the appeal, and that the dismissal of the appeal was therefore erroneous. His position is well taken under the undisputed facts.

Section 974 of the Code of Civil Procedure declares that an appeal may be taken from a justice’s court to the superior court “at any time within thirty days after notice of the rendition of the judgment.” Petitioner met this initial requirement “by filing a notice of appeal . . . and serving a copy” thereof 26 days after judgment was rendered. Section 978 provides that an undertaking on appeal must be filed and that unless it is filed, the appeal “is not effectual for any purpose.” Section 978a requires such filing to be “within five days after the filing of the notice of appeal.” Petitioner met this effectuating proviso by filing the undertaking two days after the filing of the notice of appeal. These are jurisdictional prerequisites and they must be done within the required time.

(McCracken

v.