Williams v. Superior Court

California Court of Appeal Jun 7, 1935 No. Civ. No. 9897Published

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Holding. The failure to file an undertaking prior to the issuance of a summons in a libel suit is not jurisdictional, and a court may permit the filing of such an undertaking even after a motion to dismiss has been made.

Issues

Whether the failure to file an undertaking prior to the issuance of a summons in a libel suit is jurisdictional.

Disposition. Petition denied.

Quotations verified verbatim against the opinion

“The giving of the undertaking is not jurisdictional.”

“Where a proper undertaking is on file when the motion to dismiss for failure to file it in time is made the motion must be overruled.”

“Even after the motion to dismiss, the court may order the filing thereof.”

7 Cal.App.2d 436 (1935) OLIVER J. WILLIAMS et al., Petitioners,

THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Civ. No. 9897. California Court of Appeals. First Appellate District, Division One.

June 7, 1935. H. G. McKannay, Wyckoff, Gardner & Parker, and Chapman, Trefethen & Chapman for Petitioners.

No appearance for Respondents.

The Court.

Petition for mandamus to compel the lower court to quash the summons on a suit for libel for the reason that no undertaking was filed prior to the issuance thereof.

[1] The giving of the undertaking is not jurisdictional. Where a proper undertaking is on file when the motion to dismiss for failure to file it in time is made the motion must be overruled. Even after the motion to dismiss, the court may order the filing thereof. The bond is intended to secure the costs of defendant and this object is accomplished if when the objection is made an undertaking is executed. (Becker v. Schmidlin, 153 Cal. 669 [96 P. 280].)

For the reasons given the petition is denied.

Williams v. Superior Court

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