June v. Superior Court

CHIPMAN, P. J.

Mandate. Plaintiff prays for the writ of this court compelling defendant to set aside its order dismissing the appeal of plaintiff heréin, in a certain action wherein J. J. Smalley is plaintiff and John June, plaintiff herein, is defendant, from an alleged judgment made and entered in the justice’s court of Cloverdale township, Sonoma county, in favor of said Smalley, and directing defendant to proceed to the hearing and trial of said action of

Smalley

v.

June.

It appears that in said action a trial was had by a jury and, on July 20, 1910, the jury rendered the following verdict: “We, the jury, find for the plaintiff according to the complaint. J. A. Linde, Foreman. ’ ’ In the justice’s docket there is an entry of July 20, 1910, reciting that the case was called at 9 o’clock A. M. of that day, a jury impaneled to try the case (naming the members) and, “after argument by counsel the case was submitted to the jury; after being out a half hour the jury returned a verdict in favor of the plaintiff.” No other proceedings were taken by the justice and no other entry was made in his docket except that it appears from defendant’s answer herein that the said justice entered judg

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ment on the verdict on December 30, 1910, and it is conceded that the justice neither rendered nor entered any judgment on the verdict except as last above stated. On July 22, 1910, defendant in that action, plaintiff now here, filed his notice of appeal to the superior court, “on questions of both law and fact,” and on July 23, 1910, filed with said justice an undertaking, reciting the amount of the alleged judgment, to wit, $110.29, principal, and $53, costs, and claiming a stay of execution and obligating the sureties in the sum of $300 and reciting that said sureties “promise on the part of the said appellant that the said appellant will pay the amount of said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recorded against him in the action in said superior, court.”

On July 26, 1910, the justice transmitted to said superior court a certified copy of his docket in said action, and the pleadings, all notices, motions and other papers in said cause, the notice of appeal and the undertaking filed therein, all of which were received by the clerk of said superior court on said last-named day.