Lucchesi v. Superior Court

HART, J.

This is a proceeding in mandate. The respondents filed an answer denying all the allegations of the petition and also filed a general demurrer thereto-.

On the twenty-fourth day of April, 1924, a judgment was rendered and entered by the justice’s court of Bodega township, county of Sonoma, against the petitioners, doing business as partners, and in favor of one C. Fiori for the sum of $265 and costs. On the fourth day of May, 1924, the petitioners, as defendants in said action, served and filed a notice of appeal to- the respondent court from said judgment, , on questions of law alone. It is alleged -in the petition that at the time of the filing of said notice of appeal, the petitioners duly filed an undertaking on appeal from said judgment for the stay thereof and for costs of appeal; that thereafter, and on June 9, 1924, the plaintiff in said action, Fiori, by his attorneys, served upon the attorney for the plaintiffs in said action a notice of motion to- dismiss said appeal, upon the ground, among others specified, that neither the petitioners as defendants and appellants in said action nor their attorney had filed with the justice of said Bodega township, “from which Justice’s Court said purported appeal is taken, or with the clerk of the Superior Court of the County of Sonoma, . . . the undertaking on appeal as provided by law for the filing of such undertaking or at all”; that on the eleventh day of July, 1924, the motion to dismiss said appeal was heard, by the respondent court and that the said motion.having been submitted for decision, the said court, on the thirtieth day of July, 1924, made and entered its order dismissing said appeal, upon the ground, as expressly stated by the court, that the court was without jurisdiction to entertain the appeal because no undertaking on appeal had been filed.

The motion to dismiss the appeal was supported by the affidavits of the attorneys for the respondents here (for the defendant in said action), averring, among other things, that “no undertaking on appeal nor any undertaking of any sort

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with connection with said appeal has ever been filed with said Justice nor in said action at all, and that no notice of the filing of an undertaking of any kind on appeal has ever been served on either or both of the plaintiffs’ attorneys.”