Central Holding Corp. v. Superior Court

TAPPAAN, J.,

pro

tem.

The action out of which this proceeding arose was one in w7hich the Neale Rainbow Light Corporation was plaintiff and the petitioners were defendants. The plaintiff in that action recovered a judgment as against defendants and petitioners. Petitioners then made a motion for a new trial, which was denied and they then filed a notice of appeal, request for transcript under the provisions of section 953a of the Code of Civil Procedure and an undertaking in more than double the amount of the judgment. This undertaking upon appeal was executed by two

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corporations, who at the time of the execution of the undertaking were authorized to become sureties upon such undertakings in the state of California and had complied with all statutory requirements on that subject. The plaintiff in the action thereupon filed and served its exceptions to the sufficiency of the undertaking as executed by the corporations and demanded that they qualify. Thereafter, and at the time and place designated for them to appear and qualify, the two sureties duly appeared and justified upon said undertaking by filing in said court all of the documents designated by section 1057a of the Code of Civil Procedure to be produced and filed by surety corporations upon justification upon such undertakings. The financial statement of each of said corporations thus produced showed that the assets of each of said corporations exceeded its liabilities in an amount in excess of the undertaking executed on the appeal. The plaintiff requested the production of the books of the surety corporations to determine the correctness of the financial statements so produced and filed. This the corporations refused to do and the court thereupon refused to approve the undertaking. The petitioners thereupon filed their petition in this court for a writ of mandate to compel the superior court to accept and receive the undertaking on appeal and to make an order justifying the sureties thereon as sufficient. The respondents filed their answer to the petition admitting all the material facts of the petition. As to the facts, there is no controversy.

Section 1057a of the Code of Civil Procedure provides in part as follows: “Whenever the surety on a bond or undertaking authorized or required by any law of this state is a corporation of the state or a foreign corporation, authorized to become surety on bonds or undertakings in the state, and exception is taken to the sufficiency of such surety as required by law, such corporate surety may justify on such bond or undertaking as follows: ’ ’ The section then provides the procedure to be followed upon justification, which it is admitted was fully complied with here. The section then provides: “Upon complying with the foregoing provisions and it appearing that the bond or undertaking was duly executed, that the corporation is authorized to transact business in the state, and that its assets exceed its liabilities in an amount equal to ■ or in excess of the amount of the bond or undertaking, the jus