Keefe v. Superior Court

JAMES, J.

This proceeding is one brought for the purpose of securing a writ of mandate to compel the superior court of Los Angeles County to vacate an order by which an appeal taken by petitioner and one other from R judgment of a justice’s court was dismissed. Alternative writ was issued and the matter is presented upon the facts stated in the petition and the return as made by respondents.

It appears that an action was brought in the justice’s court by one Anna B. Lister against petitioner John C. Keefe and Anna Doe Keefe, his wife; that the return of the summons showed that the true name of Anna Doe Keefe was Maria H. Keefe; that judgment was rendered in the justice’s court against both defendants; that thereafter and within the time allowed by law defendants served and filed their notice of appeal and filed an undertaking on appeal, one of the sureties thereon being Maria H. Keefe. Notice was given to the plaintiff in the justice’s court action of the filing of the undertaking, and exception was taken in the usual way to the sufficiency of such sureties. Notice was then given to the plaintiff that the sureties would appear and justify on a certain day, that day being the fourth day after the service of th§ notice excepting to their sufficiency. At the time appointed one of the sureties appeared and justified, but Maria H. Keefe did not appear, and thereupon the justice continued the hearing on the matter of the justification to the next day; that at the time to which the matter was continued the defendants in that action offered a new bond with

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a single corporation surety, which bond was allowed to be filed. This surety did not then justify or offer to justify. Thereafter the plaintiff, gave not ;e that she. excepted to the sufficiency of the new surety, antil also moved to strike from the files the new undertaking. The justice’s court denied the motion to strike the undertaking from the files and allowed the corporation surety to justify. This statement represents the condition of facts as I hey were presented to the superior court on the motion to dismiss the appeal, except it may be added that the respondent; in the action, in the justice’s court, objected to all of tho proceedings had from the time of the hearing on the jusxflication of the first surety. By her motion to dismiss the appeal, the respondent raised the main question as to whether, upon the failure of the sureties on the undertaking on appeal to justify within five days after exception taken to the r sufficiency, any jurisdiction was given to the superior court to proceed and try the case anew. * Other points were made, two of which may be mentioned, i. e., that as the original undertaking was signed by only one person competent to act as a surety, the other person being one of the appellants, a failure was shown on the part of the defendants in the justice’s court action to file such an undertaking as the corle requires within the time limited by section 978a of the Code of Civil Procedure; second, that the undertaking as finally filed by the corporation surety nowhere showed the naisms of the defendants who were appealing, and therefore was; insufficient to identify any persons for whom the surety proposed to become responsible. The section just cited provides as follows: ‘