Washington National Insurance v. Superior Court

MARKS, J.

This is an original proceeding instituted here to compel, by writ of mandate, the respondent court and judge to vacate an order dismissing an appeal from the Justice’s Court of Riverside Township, and permitting petitioner to either amend its undertaking on appeal or file another undertaking.

Riverside Township has a population in excess of thirty thousand. Petitioner brought suit in the Justice’s Court of Riverside Township against Guy E. Farmer. Judgment was rendered for defendant and petitioner appealed to the Superior Court of Riverside County. The record was prepared and transmitted to the clerk of that court and the case set for trial on October 28, 1932. On the day of trial, without giving notice of his intention so to do, Farmer moved to dismiss the appeal on the ground that the undertaking on appeal was void and did not confer jurisdiction upon the superior court. Appellant there, petitioner here, asked leave of court to either amend its undertaking on appeal or to file another undertaking. The request was denied and the appeal dismissed.

[432]

The sole question before us is whether or not the undertaking was void or merely defective, so that it could be corrected by amendment or by filing another undertaking.

The penalty of the undertaking was as follows: “ . . . does hereby undertake and promise on the part of the Appellant, that said appellant will pay all costs which may be awarded against the defendant on the appeal, or on a dismissal thereof, not exceeding the sum of one hundred & no/100 ($100.00) dollars, to which amount it acknowledges itself bound.”

It is admitted that the undertaking was sufficient under the provisions of section 978 of the Code of Civil Procedure, providing for bonds on appeal from certain justices’ courts to superior courts. Section 982a of the same code malíes the provisions of the chapter in which section 978 is found inapplicable to appeals from justices’ courts in townships having a population of thirty thousand or more. Appeals from these courts must be taken in the manner prescribed for appeals from municipal courts.

Section 985 of the Code of Civil Procedure provides that in appeals from municipal courts the undertaking on appeal must be “conditioned for the payment of all costs of appeal and