Fletcher Collection Agency v. Superior Court

CONREY, P. J.

On application of the petitioner a writ of review was issued herein, to determine whether the defendant superior court has regularly pursued its authority in refusing to dismiss an appeal from the justice’s court, in an action wherein the petitioner was plaintiff and Frank A. McDonald et al. were defendants. The facts are shown by the return filed herein.

After judgment in the justice’s court, the defendants in that action filed notice of appeal on questions of law and filed their undertaking on appeal. On November 17, 1915, the plaintiff filed exceptions to the sureties on the appeal bond. On November 22, 1915, before 1 o’clock P. M., appellants served on the plaintiff a notice “that defendants will justify the sureties on the new appeal bond filed by them in the above-entitled case, and you will take further notice that defendants will file a new appeal bond in the above-entitled action on the 22d day of November, 1915, at the hour of 4:30 P. M., in Department F of the above-entitled court, at the courthouse in the city of Los Angeles, Cal.” The plaintiff and its attorneys did not appear in the justice’s court at the time specified. The justice’s docket is silent as to justification-by the sureties or as to any appearances by either party 'before the justice’s court at the time specified in the notice of justification of sureties. But the undertaking filed on that day contains the statutory form of affidavit on an undertaking, with a certificate showing that it was subscribed and sworn to before the justice of the peace on that same day, November 22, 1915, and an indorsement was made thereon showing the filing of the undertaking on that day.

The papers on appeal having been duly transmitted to the superior court and filed therein, the plaintiff gave notice of motion to dismiss the appeal upon the grounds:

“1. That the sureties on the undertaking on appeal heretofore filed 'by said defendants did not justify in. the manner and form required by law and in accordance with the provisions of section 978 of the Code of Civil Procedure.

[195]

“2. That the statement on appeal filed by said defendants does not state any grounds of appeal, as required by section 975 of the Code of Civil Procedure.”