Martha Washington Council No. 2 v. Superior Court

KERRIGAN, J.

In this proceeding the petitioners seek the issuance of a writ of mandate to compel the respondent to vachte a certain order made by it dismissing an appeal taken by the petitioners from a judgment rendered in an action tried in the justice’s court. Such judgment was entered on the thirty-first day of December, 1914, in favor of one E. F. Trimble, the plaintiff therein, against the petitioners here, who were the defendants in that action. Thereafter and on the thirtieth day of January, 1915, the petitioners filed and served a notice of appeal from the judgment of the justice’s court, and on the same day filed an undertaking on appeal, and served notice on the plaintiff therein of the filing thereof. Subsequently, to wit, On February 3,1915, the plaintiff excepted to the sufficiency of the sureties named in the undertaking. Fearing that said undertaking was defective because of the omission of the word “house” in the expression “is a householder” in that part of the bond referring to the qualifications of the sureties, the petitioners made no attempt to have the sureties on that bond justify, but on February 4th filed a second undertaking on appeal in which the omission was rectified,- and on the same day served the plaintiff with notice of the filing of the new undertaking. Upon motion of the plaintiff the superior court, after a hearing had thereon, dismissed the appeal upon the ground that the sureties upon the undertaking of January 30, 1915, or other sureties in their stead, had failed to justify after written exception to their sufficiency .had been served as provided by law. It is to compel the vacating of such‘order of dismissal that the writ of mandate in this proceeding is sought.

We think the order of the superior court must be sustained. An appeal from the judgment of a justice’s court may be taken at any time within thirty days after the rendition of the judgment, and the appeal is taken by filing a notice with the

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justice and serving a copy thereof on the adverse party. (Code Civ. Proc., sec. 974.) “The undertaking on appeal must be filed within five days after the filing of the notice of appeal and notice of the filing of the undertaking must be given to the respondent. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given. ’ ’