Blade v. Superior Court

KNIGHT, J.

Petitioner obtained a money judgment in the Justice’s Coui’t of the city and county of San Francisco, and the defendant in the action took an appeal there

[377]

from to the Superior Court upon questions of law and fact. Subsequently petitioner moved for a dismissal of the appeal upon the ground that it was not supported by a proper record. The motion was denied, and thereupon he instituted this proceeding in

certiorari

for the purpose of having the order made in that behalf annulled.

The judgment was rendered on July 29, 1929; the notice of appeal 'was served and filed on August 13th; the undertaking on appeal was filed on August 16th, and petitioner concedes that the proceedings thus taken conformed to the requirements of the law relating to Justice’s Court appeals in force at the time of the rendition of the judgment and the filing of the notice of appeal. It appears, however, that between the dates on which the notice of appeal and the undertaking were filed, to wit, on August 14, 1929, a new code section became effective, which, in substance, provided that all appeals from Justices’ Courts in cities, cities and counties, towns and townships having a population of thirty thousand or more, must be taken, heard and determined in the manner provided for taking, hearing and determining appeals from Municipal Courts (Code Civ. Proc., sec. 982a), and admittedly such appeals are required to be taken on a record containing a bill of exceptions or a certified transcript (Code Civ. Proc., secs. 988a and 988b). Petitioner contends, therefore, that since the undertaking herein was not filed until after the new code section became operative, the legal sufficiency of the appeal must be determined by the law in force at that time.

The appeal was “taken,” however, when the notice of appeal was served and filed (Code Civ. Proc., sec. 974;

Farrisee

v

Superior Court,

40 Cal. App. 469 [181 Pac. 73]), and although the appeal was not sufficient for any purpose until the undertaking was filed (Code Civ. Proc., sec. 978;