Rigby v. Superior Court

SHAW, J.

On August 31, 1910, The Mill Valley Rochdale Company recovered a judgment against L. T. Parker in the superior court of Marin County. The action was begun in the recorder’s court of the town of Mill Valley, a town of the sixth class, and that court had given judgment for Parker. The Rochdale Company had appealed to the superior court. On April 22, 1911, L. T. Parker served and filed a notice of motion to set aside the judgment on the ground that the appeal from the recorder’s court was not properly taken and that therefore the superior court was without jurisdiction of the case. The motion was granted and on April 29, 1911, the superior court made an order setting aside its former judgment and dismissing the action for lack of jurisdiction. Rigby, the plaintiff in the present proceeding, is the assignee of the Mill Valley Rochdale Company. More than six months had passed after the rendition of the judgment before the application to set it aside was made. Therefore, unless the judgment was void for lack of jurisdiction of the cause, the superior court had no jurisdiction to make the order setting it aside. Asserting that the judgment was not void, this proceeding in

certiorari

was begun by Rigby to annul the order on the ground that the superior court had lost power over the case and could not make a valid order setting the judgment aside.

The judgment in the recorder’s court was rendered on July 8, 1910. The notice of appeal therefrom to the superior court was served on August 3, 1910, and filed in the recorder’s court on August 5, 1910. The undertaking on said appeal was not filed until August 10, 1910, and no notice thereof was given to Parker or his attorney until August 12, 1910. It is claimed that the appeal was ineffectual to vest jurisdiction of the cause in the superior court for two reasons: 1. That the undertaking, although filed within five days after the filing of the notice of appeal, was filed more than thirty days after the rendition of the judgment; 2. That the giving of a notice of the filing of the undertaking is necessary to

[336]

perfect the appeal, and that it was given too late to be of any effect.

The validity of the appeal depends upon the meaning and effect of the amendment of 1909 to the provisions of the code on the subject. These provisions apply to recorder’s courts. (Stats. 1905, p. 73.) Prior to 1909 section 974 of the Code of Civil Procedure provided that such appeals could be taken at any time within thirty days after the rendition of the judgment appealed from, by filing a notice of appeal with, the justice and serving a copy thereof on the adverse party, and section 978 provided that such appeal would not be effectual for any purpose unless an undertaking on appeal with two or more sureties be filed. These provisions were not changed by the amendment. It will be noted that the time within which the undertaking must be filed was not fixed by the terms of the code. It was silent on that point. Nevertheless, in a series of decisions it had been established that the undertaking must be filed within thirty days, or the appeal would be ineffectual and void.