Jones v. Superior Court of Kern Cty.

McFARLAND, J.

This is an application originally filed in the district court of appeal, second appellate district, for a writ of prohibition to restrain and prohibit the superior court of Kern County from proceeding with the trial of a cause pending therein entitled Kern Valley Bank

v.

E. E. J ones. All of the justices of the said district court were not able to concur in a judgment, and the case was transferred to this court. The said Kern Valley Bank brought an action in the justice’s court against the petitioner herein, E. E. Jones, to recover of the latter a money judgment, and Jones answered and demanded judgment against the .bank, and after trial judgment was rendered in favor of the defendant, Jones, for $190.76, and from this judgment the bank appealed to the superior court. Jones moved to dismiss the appeal upon the sole ground that no undertaking for the payment of costs had been given. The superior court denied the motion to dismiss, whereupon Jones commenced this present proceeding to prohibit the superior court from trying the case.

The law governing the matter of undertakings on appeal from a justice’s court to a superior court is found in section 978 of the Code of Civil Procedure, and that part of it which is material is as follows: “An appeal from a justice’s or police court is not effectual for any purpose, unless an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on appeal; or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money”; etc.

In the instrument filed by the respondent as an undertaking on appeal the judgment in the justice’s court is fully recited. It is then stated that “the said plaintiff, Kern Valley Bank, is dissatisfied with said judgment and is desirous of appealing therefrom to the superior court of Kern County, state of California, and pending such appeal, claims a stay of proceedings

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and is desirous of staying the execution of the said judgment so rendered as aforesaid”; then the instrument states that “in consideration of the premises, of such appeal and of such stay of proceedings and execution, all as aforesaid,” the two sureties bind themselves jointly and severally and undertake in the sum of five hundred dollars, “and promise on the part of said appellant that the said appellant will pay the amount of the said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against it in the action in the said superior court.”