The Classroom Teacher, Inc. v. Superior Court

PULLEN, P. J.

The Classroom Teacher, Inc., a foreign corporation, commenced an action in the Justice’s Court of Glenn County to recover from defendant a balance due for books sold upon a written contract. Defendant appeared by demurrer, and at the same time demanded that plaintiff file an undertaking in the sum of $100 as security for costs, as provided in section 1036 of the Code of Civil Procedure. Upon refusal to comply with such demand within thirty days, judgment of dismissal was entered against the plaintiff.

An appeal was thereupon taken by plaintiff to the superior court upon the question of law thus tendered, and upon the hearing thereof, the judgment of dismissal by the justice court was sustained. Thereupon The Classroom Teacher, Inc., as plaintiff brought this petition to review the order and proceedings of the superior court and asks that the same be annulled.

Section 1036 of the Code of Civil Procedure reads as follows: “When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, security for costs and charges, which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action or special proceeding must be stayed until an undertaking, executed by two or more persons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action or special proceeding, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security, and proceed

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ings in the action or special proceeding stayed until such new or additional undertaking is executed and filed.”

The order of the justice’s court in dismissing the action is based upon section 1037 of the Code of Civil Procedure, which reads: “After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action or special proceeding to be dismissed. ’ ’ The question here involved is whether or not section 1036 of the Code of Civil Procedure is applicable to actions in the justice’s court. If it does apply, then the court had jurisdiction under section 1037 to dismiss the action after the lapse of thirty days if the undertaking was not filed. If section 1036 is not applicable to proceedings in the justice’s court, then petitioner must prevail.