Peters v. Superior Court

[83]

JAMES, J.

Certiorari to review proceedings had on a motion made to dismiss an appeal taken to the superior court of the county of San Bernardino from the justice’s court of Colton township. In the justice’s court action this petitioner was the plaintiff and secured judgment against A. Crowell and H. C. Crowell. The defendants in that action appealed. The motion made by the petitioner in the superior court was to dismiss the appeal taken by the Crowells, because the sureties on the undertaking on appeal had failed to justify upon notice to the plaintiff after exception had been taken to their sufficiency. The superior court denied the motion. We have before us the record of the proceedings and evidence heard by the superior court on which the motion was determined. It appears by the uncontradicted evidence that after the appeal was taken, and on the tenth day of January, 1916, the attorneys for the plaintiff in the justice’s court action, whose offices were in the city of Los Angeles, received through the mails a copy of the notice of appeal and a copy of the bond given on appeal, with request that they acknowledge service on the notice of appeal and return the same to the justice. The attorneys for the plaintiff thereupon wrote to the attorney for the defendants-appellants, whose office was in the city of San Bernardino, acknowledging receipt of the notice of appeal and bond, and informing said attorney that they had accepted service of the notice of appeal and returned the same to the justice of the peace, at the same time inclosing a notice of exception to the sureties on the undertaking. This letter, it was admitted, was received by the attorney addressed on January 12th. The notice of exception to sureties was filed with the justice on January 14th. In another letter received in San Bernardino on January 12th, the plaintiff’s attorneys stated to the opposing counsel: “Kindly give me as much notice as possible of the date of justification of sureties.” To this letter a reply was made to the effect that the hearing of the justification of sureties would be taken up some time later in the month. On the 14th of January the San Bernardino counsel received from the plaintiff’s counsel a letter in which he was advised that the plaintiff would insist upon the sureties justifying strictly in accordance with law; that is, within five days from the date' of the exception.

No notice of any justification was given, but on the 18th of January the sureties appeared before the justice and justified.