Lustig v. Superior Court

CRAIG, J.

The plaintiff in this proceeding appealed to the Superior Court of Los Angeles County from a judgment rendered against him in the justice’s court of Los Angeles

[630]

township on July 21, 1925. Said appeal was perfected in the usual form, except that the undertaking therein was executed by the appellant and by one surety only. The case was called for trial

de novo

in the Superior Court on May 19, 1926, wdiereupon motion was made to dismiss the appeal upon the ground that it had not been perfected, in that the undertaking did not conform to section 978 of the Code of Civil Procedure. The plaintiff herein, appellant below, produced an additional surety who, it is alleged, was ready, able, and willing to qualify, and asked permission to forthwith amend the undertaking complained of by furnishing the requisite number of sureties, or to execute and file a new undertaking. The matters were submitted, and after consideration the motion last mentioned was denied, and the appeal was dismissed. This is a proceeding in

mandamus,

praying that said Superior Court be directed to vacate its order of dismissal, and to restore the cause to the calendar for trial.

The plaintiff in this proceeding contends that the undertaking in controversy was merely defective, but- not void, and that under such circumstances section 954 of the Code of Civil Procedure expressly afforded him the right to correct his error by furnishing sufficient sureties. Authorities construing section 954 are cited, which' so hold. Said section, however, relates entirely to appeals from the superior court, and the cited cases so indicate. This appeal was attempted to be taken pursuant to section 978 of the Code of Civil Procedure, enacted in 1915, which provides, in part, that:

“An appeal from a justice’s or police court

is not effectual for any purpose,

unless an undertaking be filed with

tiuo or more