Bardwell v. Superior Court

California Court of Appeal Mar 22, 1934 No. Docket No. 9542.Published

Before: Archbald, Stephens

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Holding. The court held that a second appeal is abortive when a first appeal is still pending and not fatally defective, even if the sureties on the first appeal failed to justify. The superior court must dismiss both the first appeal and the second attempted appeal to restore jurisdiction to the justice's court.

Issues

Whether a second appeal can be maintained when a first appeal is pending but the sureties failed to justify.
Whether the failure of sureties to justify on an appeal bond divests the superior court of jurisdiction without a formal order of dismissal.

Disposition. Peremptory writ issued

Quotations verified verbatim against the opinion

“As in the instant case, the first appeal was not fatally defective, but lost its effectiveness only because the sureties failed to justify, and as it is still pending in the superior court, the second appeal was abortive.”

“Our peremptory writ will issue to the superior court directing it to dismiss the first appeal, to dismiss the second attempted appeal, and to take such other steps as may be necessary to replace the case within the jurisdiction of the justice’s court”

Opinion — Stephens

STEPHENS, P. J.

A judgment was awarded in a justice’s court against the defendant there, who took all of the required steps to appeal. Notice was given her that the sureties on her appeal bond should appear and justify, but they did not do so within the required time. Thereafter and within the statutory time for appeal the said defendant filed a new notice of appeal and a new undertaking on appeal and caused a new notice thereof to be served on plain

[493]

tiff, but paid no additional fee. The justice thereafter transmitted the case papers to the superior court and the plaintiff duly moved therein to dismiss the latter appeal. The motion was denied. The plaintiff in the justice’s court now prays that we issue our writ of mandate commanding the superior court to dismiss the appeal, and for such further relief as she may be entitled to. Respondents appear by demurrer, alleging that the petition does not state a cause of action for the issuance of the writ of mandate or a cause of action against it.

The cause was argued herein upon the understanding that the demurrer should be taken as an answer.

We have examined all of the many cases cited by the parties, and while none of them arose from exactly the same state of facts that obtain in the instant case, we deduct the following conclusions from them:

Upon an appeal from a justice’s court to the superior court, jurisdiction attaches to the superior court when (a) the notice of appeal has been filed, (b) the undertaking has been filed and (c) when notice thereof has been given.

{McCracken

Superior Court,

86 Cal. 75 [24 Pac. 845].) This assuming that everything has been done within the required times and no step is fatally defective.

{Tompkins

Superior Court,

Bardwell v. Superior Court

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Opinion — Stephens

STEPHENS, P. J.

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Concurrence — Archbald

ARCHBALD, J.,

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