W. P. Jeffries Co. v. Superior Court

THE

COURT.

Certiorari. Petitioner is plaintiff in an action brought in a justice’s court of Los Angeles county, in which he obtained a judgment against the defendants in the action on October 11, 1909. The latter appealed to the superior court upon questions of both law and fact. Separate notices of appeal were served and filed on October 21, 1909, by two of the several defendants in the action, and on the same day the statutory undertakings on appeal and to stay execution were filed by one of the defendants; and on October 25, 1909, a separate undertaking for the same purpose by the other appealing defendants was filed. On October 27, 1909, all the papers in the cause were certified to and filed in the office of the clerk of the superior court.

No notice of the filing of these undertakings, or either of them, was given as provided by section 978a of the Code of Civil Procedure at the time they were filed, or within thirty days thereafter; and, on November 11, 1909, respondent served notice upon appellants of its intention to move to dismiss the purported appeals, which motion was noticed for November 22, 1909, and based upon the failure of appellants to serve the notices of the filing of said undertakings as aforesaid. An affidavit of counsel setting out the facts was served with the notice. Thereafter, on November 12, 1909, one of the appellants served notice upon petitioner of the filing of his undertaking. The motion to dismiss said appeals was heard at the time for which noticed and the motion denied. It is this order denying this motion which we are asked to review.

Section 978a, Code of Civil Procedure, is a new section, added to the code in 1909, and reads as follows:

‘ ‘

The under-, taking on appeal must be filed within five days after the filing of the notice of appeal and notice of the filing of

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the undertaking must be given to the respondent. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no'such undertaking had been given.”