Edwards v. Superior Court, in & for the Cty. of Alameda

Prohibition. The petitioners recovered a money judgment in a justice's court for $82.70. Defendant therein gave notice of appeal to the superior court, and in due time filed the following undertaking: —

"In the Justice's Court of Oakland Township, County of Alameda, State of California.

"George Edwards, Noel Stone and John Kleis, "Plaintiffs, vs. "F.E. Miller, "Defendant.

"Know all men by these presents that we, F.E. Miller, principal and J. Russo and B. Ciancuarulo sureties, are held and firmly bound unto George Edwards, Noel Stone and John Kleis, in the sum of one hundred sixty-five 40/100 dollars, lawful money of the United States of America, being double the amount of the judgment and cost mentioned herein, to be paid to the said George Edwards, Noel Stone and John Kleis, their executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.

"Signed with our hands, sealed and dated this 2nd day of November, 1909.

"The condition of the above undertaking is such, that whereas the said Edwards, Noel Stone and John Kleis obtained a judgment against the said F.E. Miller, before James G. Quinn, justice of the peace of Oakland Township, in and for the county of Alameda, state of California, on the 25th day of October, 1909, for $73.20, principal sum, and for $9.50/100 dollars costs; and whereas the above bounden F.E. Miller is desirous of appealing from the decision of said justice to the *Page 712 superior court in and for the county of Alameda, and a stay of proceedings is claimed. Now, if the above-bounden shall well and truly pay or cause to be paid, the amount of the said judgment and all costs, and obey any order the said superior court may make therein, if the said appeal be withdrawn or dismissed, or pay the amount of any judgment and all the costs that may be recovered against the said appellant in the said superior court, and obey any order the said court may make therein, then this obligation to be null and void; otherwise to remain in full force and virtue.

"F.E. MILLER, "J. RUSSO, "B. CIANCIARULO."

The petitioners moved to dismiss the appeal upon the ground that this undertaking was insufficient to comply with the requirements of section 978 of the Code of Civil Procedure, as construed in McConky v. Superior Court, 56 Cal. 83. The motion to dismiss was granted, but subsequently, on motion of the appellant, that order was vacated, and the appeal placed upon the calendar of the superior court, wherein it will be heard and determined unless a writ of prohibition is granted.