Mathis v. Superior Court of City & County of San Francisco

NOURSE, J.

This is a petition in

mandamus

to require respondents to dismiss an appeal from a judgment rendered by the justice’s court. On the twenty-first day of June, 1920, petitioner herein, as plaintiff, recovered a judgment against Belle Dennett and John C. Oreutt in the justice’s court in the city and county of San Francisco on an assigned claim for taxi hire in the sum of $187.75. On the twenty-fifth day of the same month counsel for defendants filed in the justice’s court a notice of appeal on behalf of both defendants. On the 29th of June there was filed what purported- to be an undertaking on appeal from said judgment, but which refers to a judgment against John C. Oreutt only, and states that ‘‘ said defendants are dissatisfied with said judgment and desirous of appealing therefrom” and that “said appellants claim a stay of proceedings,” and that “said appellants will pay the amount of the judgment so appealed from.” Numerous interlineations appear upon the face of the undertaking, which would indicate an intention of some one, either before or after its execution, to change it to a bond in favor of the defendant Oreutt alone and at the same time to convey the impression that it was a stay bond for both appellants. No objection was made to the form of the undertaking or to the sufficiency of the sureties thereon by the plaintiff in the justice’s court action within the time allowed

[654]

by law, but thereafter and on the twenty-first day of July, 1920, she gave notice of a motion to set the cause for trial before the superior court, said motion being noticed for hearing at a date after the expiration of the time within which the appellants in said action might have perfected their appeal. Thereafter the plaintiff in said action, and petitioner herein, moved said court for an order dismissing said appeal on the ground that it had not been perfected as required by law. This motion ivas denied and petitioner now asks that the court be directed to enter its order dismissing said appeal.

[1]

The purported undertaking is clearly insufficient for any purpose. The interlineations and alterations appearing thereon are of such a nature as would avoid liability on the part of the sureties. It was apparently filed in support of a notice of appeal given on behalf of both defendants in a judgment against both, yet it refers to a judgment against one of the defendants alone and the singular and plural" are used in designating the defendants and appellants in such a way as to render the bond ineffective within the rule of