State v. Superior Court

TUTTLE, J.

J.—This is an application for a writ of mandate directing the Superior Court of the State of California, in

[629]

and for the County of Sacramento, to dismiss a certain civil action.

On December 22, 1938, an action was filed in the Superior Court of the State of California, in and for the County of San Diego, entitled

“Marian Louise Brewer and Lee M. Brewer, plaintiffs,

vs.

The State of California and John Doe, defendants”.

The plaintiffs in said action sought to recover damages from the state occasioned by personal injuries alleged to have been sustained by them in a collision between an automobile in which they were riding and an automobile which is alleged to have been driven by an employee of the State of California.

On the 10th day of April, 1939, defendants, after due notice, moved the court to dismiss said action upon the ground that the undertaking filed by plaintiffs “is insufficient as a matter of law to comply with the terms of Section 688 of the Political Code of the State of California”. It appeared upon said hearing that the sole contention of defendants was that plaintiffs had failed to file the affidavit of the sureties upon the undertaking, as required by the provisions of section 1057 of the Code of Civil Procedure. It further appears that the following writing was endorsed upon said undertaking:

“Good cause appearing, the amount of bond required by Section 688, Political Code, is hereby fixed at the sum of Five Hundred Dollars ($500.00), and the sureties in the above undertaking having been examined by me, the said undertaking is approved.

“Dated this 22 day of December, 1938.

“Arthur L. Mundo,

“Judge of the Superior Court.”

Prior to the date of said hearing plaintiffs filed such affidavit in the form required by the statute, and it is not controverted by the state that at the time of said hearing the undertaking complied with the law in all respects. The motion was denied by the trial court.