Rauer's Law & Collection Co. v. Superior Court of S.F.

[297]

ANGELLOTTI, C. J.

This is a proceeding in

certiorari,

instituted originally in the district court of appeal for the first district. It was sought thereby to annul an order of the superior court denying a motion to dismiss an appeal attempted to be taken thereto from a judgment of the justice’s court of the city and county of San Francisco. The ground of the motion to dismiss was that the undertaking on appeal filed in the justice’s court did not comply with the requirements of the statute, and that the superior court consequently was without jurisdiction. The superior court in denying the motion to dismiss, allowed the appellant to file a new bond within three days, providing that otherwise the motion would be granted. The district court of appeal gave judgment vacating, annulling, and setting aside the order of the superior court. Within the time allowed an order was made by this court vacating said judgment of the district court of appeal, and transferring said proceeding to this court for hearing and determination.

In the justice’s court judgment was given in favor of plaintiff in said action, who is also the plaintiff here, against the defendant, David Salfield. Within the time provided by law Salfield filed his notice of appeal to the superior court, and also a purported undertaking on appeal in the sum of one hundred dollars for the payment of the costs on appeal, and a stay of proceedings being prayed, also in a sum equal to twice the amount of the judgment, including costs. This undertaking was in all respects as required by the provisions of section 978 of the Code of Civil Procedure. The affidavit of sureties accompanying the bond, under section 1057 of the Code of Civil Procedure, was defective solely in omitting to show that the sureties were either householders or freeholders within the state. Said affidavit read as to each of said sureties, "That he is a resident of said state and city and county and is a........holder therein. ’ ’

Section 1057 of the Code of Civil Procedure, provides: “In any ease where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must . . . require the sureties to accompany it with an affidavit that they are each residents and householders, or freeholders, within the state, and are each worth the sum specified in the undertaking or bond,” etc. This section is