San Francisco-Oakland Terminal Railways v. Superior Court

[587]

NOURSE, J.

This is an original proceeding in mandate to require the superior court to set aside its order dismissing petitioner’s appeal from a judgment adverse to it rendered in the justice’s court in an action entitled

Rinke

v.

San Francisco-Oakland Terminal Rys. etc.,

and to direct the lower court to proceed with the trial of the action. The petition as first filed was designated as one in

certiorari.

A demurrer was interposed upon the ground that

mandamus

and not

certiorari

was the proper remedy. This demurrer was sustained on the authority of

Golden Gate Tile Co.

v.

Superior Court,

159 Cal. 474, [114 Pac. 978] and

Widrin

v.

Superior Court,

17 Cal. App. 93, [118 Pac. 550], An alternative writ of mandate was ordered issued on the authority .of the case first cited and upon the return day respondent rested upon its general demurrer which put in issue the question whether the superior court had properly dismissed the appeal because,, the surety had not justified in the manner prescribed by law. The argument of respondent is that the provisions of section 1057a of the Code of Civil Procedure, relating to the justification of corporate surety upon a bond on appeal from a judgment rendered in a justice’s court, are mandatory and exclusive.

The admitted facts alleged in the petition are: When the appeal was taken from the judgment rendered in the justice’s court appellant within due time filed a cost and stay bond giving a foreign surety company as surety thereon. Exception was taken to the sufficiency of the surety, and in due time and after proper notice a hearing was had thereon before the justice of the peace. At the hearing the agent and attorney in fact of the surety company appeared personally before the justice of the peace and gave such testimony as to the financial standing of the company as to satisfy the justice that it was sufficient. He accordingly indorsed his approval of the bond as given. It does not appear that the competency of the agent to so justify was ever questioned, and no objection was or is now made to the sufficiency of the surety; but the sole ground upon which the superior court granted the motion to dismiss the appeal was that the provisions of section 1057a of the Code of Civil Procedure were not strictly complied with.