Robert v. Superior Court

California Court of Appeal Sep 13, 1918 No. Civ. No. 2749.Published

Before: Shaw

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Holding. The court held that an undertaking for costs on appeal from a justice's court is for the benefit of the respondent and may be waived by them, and that a party who waives such an undertaking and proceeds to trial cannot later challenge the court's jurisdiction.

Issues

Whether an undertaking for costs on appeal from a justice's court is a jurisdictional requirement that cannot be waived.
Whether a party who waives an undertaking for costs and participates in the trial is estopped from later challenging the court's jurisdiction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The bond runs to the obligee and is clearly for the benefit of the respondent in such action.”

“anyone may waive the advantage of a law intended solely for his benefit,” we are constrained to hold that, since the undertaking was clearly for petitioner’s benefit, he, under the provision quoted, had the right to waive the giving of the same.”

“petitioner having waived the undertaking and, without interposing any objection, gone into the trial and taken the chances of obtaining a judgment in his favor, his objection now made comes too late”

Synopsis

REVIEW on Certiorari of a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.

The facts are stated in the opinion of the court.

SHAW, J.

Certiorari. Upon trial had in the- justice’s court, petitioner as plaintiff obtained a judgment against the Los Angeles Railway Company, from which it appealed to the superior court. Within five days after the time of serving and filing the notice of appeal, the parties filed with the justice a written document, duly signed, which, after reciting the service and filing by the Railway Company of its notice of appeal and its desire to have the undertaking for costs and that for a stay of execution waived, stated: “Now, therefore, it is hereby stipulated that each and both of said undertakings are hereby expressly waived. It is further stipulated that said appeal shall be deemed perfected for all purposes without the filing of said undertakings.” Thereafter, within due time, a transcript of the record was transmitted to the superior court where, without any objection at any time interposed by the plaintiff in said action, the case was tried, as a result of which a judgment was rendered in favor of defendant. Notwithstanding the express waiver of the undertaking for costs, petitioner now -asks this court, in reviewing the proceeding, to annul the judgment so entered by the superior court, the ground therefor asserted being that upon the facts shown the court had no jurisdiction of the appeal. This contention is based upon section 978 of the Code of Civil'Procedure, which provides: “An appeal from a justice’s or police court is not effectual for any purpose, unless an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on the appeal.”

In construing a similar statute the supreme court of South Dakota, in

Brown

Chicago etc. Ry. Co.,

10 S. D. 633, [66 Am. St. Rep. 730, 75 N. W. 198], held that an undertaking on appeal is required .not only for the benefit of the adverse party, but on grounds of public policy, and since it constitutes one of the essential steps in perfecting an appeal, a waiver thereof was insufficient to confer jurisdiction. A like ruling was made in

Santom

Ballard,

133 Mass. 464. Petitioner, in support of this view, also cites several cases in this jurisdiction, among them,

Thomas

Robert v. Superior Court

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Synopsis

SHAW, J.

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