Brownell v. Superior Court

CONREY, P. J.

Certiorari.

The petitioner was plaintiff in an action against Bendigo Mines Company, a corporation, in the justice’s court of San Bernardino Township, county of San Bernardino. After judgment in that court in favor of the plaintiff, the defendant gave notice of appeal to the superior court of that county. On the same day that defendant filed in the said justice’s court an undertaking entitled the same as the title of the action from which the appeal was taken, but which did not describe any judgment of that justice’s court or refer to any appeal to the superior court of San Bernardino' County. The references to a judgment were

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as follows: “Whereas, in an action in the justice’s court of

Los Angeles township, county of Los Angeles,

and state of California, judgment was, on the 27th day of June, 1916, given and entered in said justice court, in favor of Charles H. Brownell, Administrator of Hanson A. B. Brownell, deceased, and against Bendigo Mines Company, . . . ; and, whereas the said Bendigo Mines Company is dissatisfied with said judgment and desirous of appealing therefrom to the Superior Court of the

county of Los Angeles:

Now, therefore,” etc. All further references are to the “said appeal,” and to the “said judgment,” and to the “said Superior Court.”

After the papers filed in the justice’s court had been transmitted to the superior court of San Bernardino County, the plaintiff moved for a dismissal of the appeal upon the ground that no undertaking had been filed, or money deposited in lieu thereof at any time after the filing of the notice of .appeal from the judgment, and that the superior court was without jurisdiction over the action. When said motion was presented, the superior court permitted the defendant to withdraw said undertaking from the files and have it amended by substituting for the words “Los Angeles Township,” the words “San Bernardino Township”; and for “County of Los Angeles” the words “County of San Bernardino ’ ’; and for the words ‘ ‘ Superior Court of the county of Los Angeles,” the words “Superior Court of the county of San Bernardino”; all of which was done upon the original document, with memoranda placed in the margin signifying consent to such amendments by the surety company through its authorized officers. This having been done, the motion to dismiss the appeal was denied, and the respondent superior court intends to proceed to trial and judgment in the action. Section 954 of the Code of Civil Procedure provides for the substitution of a new undertaking on appeal where the undertaking first filed was insufficient. That section apparently refers only to appeals to the supreme court or district courts of appeal, and our attention has not been directed to any provision which would make it applicable to appeals from justices’ courts. But it has been held that in such cases it is an authorized practice for the superior court to allow the amendment of an undertaking on appeal on account of the insufficiency thereof in like instances where such relief