Budd v. Superior Court

Prohibition—Appeal prom Justice’s Court—Jurisdiction.—A writ of prohibition will not lie to prevent the superior court from taking any further action in a proceeding on an appeal from a justice’s court than to dismiss the same, where it appears that the superior court has jurisdiction of the appeal.

Id.—Motion to Dismiss Appeal—Failure op Sureties to Justify— Failure op Excepting Party to Attend.—A motion to dismiss an appeal from the justice’s court for the alleged failure of the sureties on the appeal bond to justify within five days after service of notice of exception thereto, where it appears that the excepting party failed to attend at the time fixed, was properly denied.

lb.—Conflicting Affidavits—Determination op Superior Court Conclusive.—Where there were conflicting affidavits as to whether the surety had appeared in the justice’s court at the proper time for justification, but it is reasonably certain that the excepting party failed to appear, it was for the judge of the superior court to determine, on the hearing of the motion to dismiss the appeal, whether the surety had justified or not, or whether justification had been waived. In so far as that question depended upon a conclusion of fact to be drawn from conflicting evidence presented by the affidavits, its finding cannot be reviewed.

Id.—Waiver op Justification—Rights op Undertaking Party.—The justification of sureties on undertakings may be waived by the failure of the party excepting to appear at the time set for justifiea- ' tion. In case of nonappearance on the part of the excepting party, the party giving the undertaking may either rest upon the default as a waiver of the exception, or he may present his sureties and take a formal approval.

lb.—proper Time for Justification—Five Days After Filing Notice op Exception.—A justification of the sureties on the appeal bond within five days after the filing of the notice of exception in the justice’s court, though more than seven days has elapsed after service of the notice, is in proper time.

Id.—Construction op Code—Completion op Exceptions by Filing Notice.—Construing the several provisions of the code relating to justices’ courts and the practice therein together, it is held that a party excepting to the sufficiency of sureties on an undertaking on appeal therefrom must file his notice of exception with the justice, and that no such exception will be deemed complete until such notice is filed.