Gadette v. Recorder's Court

CRAIG, J.

Appellant filed a petition in the superior court of the county of San Diego for a writ of prohibition directed against the recorder’s court of East San Diego. A general demurrer was interposed by the defendant and was sustained and the appeal is taken from the judgment entered upon the petitioner’s failure to amend.

The petition alleged the beginning of an action in the recorder’s court of East San Diego wherein one Ava C. Roberts was plaintiff and L. Gadette was defendant; that said defendant was at the commencement of said action a resident of another state; that in said action the defendant

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therein had filed a demurrer and at the same time filed with the recorder’s court and served upon the plaintiff a notice requiring security for costs as provided in section 1036 of the Code of Civil Procedure; that notwithstanding the filing of said notice, the recorder’s court subsequently heard the demurrer and overruled the same and ordered the defendant to answer forthwith and thereupon entered judgment in favor of plaintiff and against defendant; that the recorder’s court was about to enforce this judgment and the plaintiff in said action entirely failed to deposit a bond as required by said notice.

The case of

Carter

v.

Superior Court,

176 Cal. 752, [169 Pac. 667], is relied upon by both the appellant and respondent.

In that case the plaintiff was a resident of Oregon; defendant made demand, as provided in section 1036 of the Code of Civil Procedure, for security, etc.; plaintiff filed an undertaking with but one surety. After the expiration of thirty days from the date of demand, defendant moved to dismiss the action on the ground that the undertaking did not comply with the law. The court points out that in section 1037 of the Code of Civil Procedure' the word “may” is used and not “must,” which authorizes the dismissal of an action where the undertaking is not filed within the time provided. The view is expressed that in so far as passing upon the motion to dismiss is concerned,' the court is “acting in the exercise of its jurisdiction whether it grants or denies the motion”; “that in the absence of a dismissal, the court retains jurisdiction of the case.”