Montezuma Improvement Co. v. Superior Court of San Francisco

TYLER, P. J.

Petition for writ of prohibition. The superior court refused to dismiss an appeal in an action brought in the justice’s court against the petitioner herein by one Rudolph Haak. The action was one to recover the sum of $150. The case was tried on the thirtieth day of September, 1922, and judgment was rendered in favor of the defendant on the tenth day of November of the same year.

Thereafter and on the ninth day of December, 1922, and within the time limited by the statute, plaintiff served a notice of appeal from such judgment on questions of both law and fact, and at the same time filed an undertaking for the payment of costs as provided for by section 978 of the Code of Civil Procedure. On December 15th following defendant filed a notice of exception to the sufficiency of the sureties, whereupon plaintiff gave notice to the defendant that they would justify on their undertaking on December 18, 1922. They did not justify on the day noticed, but plaintiff again notified defendant that they would do so two days later. On that day, December 20th, plaintiff abandoned the justification of the sureties upon the undertaking, and in lieu thereof he deposited with the court the sum of $100, together with the costs required by section 981 of the Code of Civil Procedure, as'permitted by section 926 of said code. The clerk thereupon transmitted to the superior court the papers, pleadings, and files in the ease, and the matter was duly assigned by such court for trial, where the case is now pending.

Defendant moved to dismiss the appeal on the ground that the undertaking was ineffectual for any purpose. The motion was made upon the ground that the deposit made on the twentieth day of December was too late to give the court jurisdiction, as it was made eleven days after the date of the filing of the notice of appeal. The court made “an order denying and overruling the motion, and petitioner alleges that it is about to proceed to a trial of the cause, and this proceeding is instituted to restrain it from so doing.

[436]

The contention here presented involves the time within which an applicant may file a deposit of money for the purpose of perfecting his appeal.

The right to make a deposit of a sum of money in lieu of an undertaking, as permitted by section 926 of the Code of Civil Procedure, is not questioned by petitioner, but it claims that the deposit, in order to be the equivalent of an undertaking on appeal, must be made within five days after the notice of appeal is filed; in other words, as we understand petitioner’s contention, a party taking an appeal is put to his election to file either an undertaking or make a deposit of a sum of money in the first instance, and that when an undertaking is relied upon and the sureties fail to justify the appeal lapses, and cannot be kept in force by a deposit made within the time allowed for justification, where the deposit is substituted more than five days after the notice of appeal is filed.