Farrisee v. Superior Court

SHAW, J.

Certiorari.

The question presented is the power of the superior court to proceed with the trial of an action pending therein on appeal from a judgment rendered by a justice’s" court, after denying, a motion to dismiss the same made upon the ground that the superior court is without jurisdiction to try the case, for the reason that the sureties upon the undertaking failed to qualify within five days after exceptions interposed to their sufficiency, and that a second notice of appeal and undertaking thereon, filed before the expiration of the time within which the sureties might have qualified and while the first appeal was operative, was a nullity.

[1]

An appeal from a justice’s court is taken by filing a notice thereof with the justice and serving a copy thereof upon the adverse party (Code Civ. Proc., sec. 974), but it “is not effectual for any purpose, unless an undertaking be filed’* (Code Civ. Proc., sec. 978). This implies that it is effectual if the undertaking required be filed.

[2]

Appellant, in giving the notice and filing the undertaking, having fully complied with the provisions of the code, the justice was divested of all jurisdiction in the matter other than, as required by section 977 of the Code of Civil Procedure, and subject to the payment of his fees, to transmit the record to the clerk of the superior court for further proceedings. [3] “The jurisdiction of the superior court attached upon the perfecting of the appeal by the filing of the undertaking, and having once attached could be divested only by an order of dismissal or some other act of that court. ’ ’

(Moffat

v.

Greenwalt,

90 Cal. 368, [27 Pac. 296].) The first appeal having been perfected, it,

ipso facto,

effected a transfer of the case to the superior court; hence, there was nothing in the justice’s court which could be made the subject of the second appeal

(Brown

v.

Plummer,

70 Cal. 337, [11 Pac. 631] ;

Tompkins