American Surety Co. of New York v. Superior Court

PRESTON, J.

Action in mandate directed against the appellate department of the Superior Court of the County of Los Angeles to compel it to reinstate on its docket the appeal of defendant in a case begun in the municipal court of said county styled

“Myron W. Goble, plaintiff and respondent, vs. American Surety Company of New York, a corporation, defendant and appellant”,

said superior court having entered an order purporting to dismiss the appeal for want of jurisdiction thereof.

The petition correctly states the question of law involved as follows: “Is the superior court without jurisdiction of an appeal from the municipal court merely because the undertaking on appeal is filed prior to the filing of a notice of appeal, where the undertaking was filed subsequent to the entry of judgment-in the municipal court and thereafter, and within the time allowed by law, a notice of appeal ■was filed?”

Plaintiff, in the trial court, sued defendant for breach of contract and obtained a money judgment in the sum of $2,000. This judgment was entered on July 5, 1932. Defendant, pursuant to due notice, brought on for hearing his motion for new trial, which motion was denied on August 29, 1932. On September 10, 1932', the formal notice of appeal from the judgment was filed. All these steps were admittedly taken in due time. However, the undertaking on appeal required by sections 985 and 986 of the Code of Civil Procedure was actually on file on August 2, 1932, was still on file on September 10th thereafter and has continuously remained a record in said court. Respondent court, upon this showing, refused jurisdiction of the appeal because of failure to lodge the said undertaking with the court subsequent to and within five days after the filing of the notice of appeal.

The undertaking, however, correctly recites the date of rendition of judgment, the amount thereof, the parties to

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the action; also that an appeal has been taken; that a stay of execution is desired and it covenants that the surety is bound in double the amount of the judgment, if the appeal is dismissed or the judgment affirmed, to pay said judgment, together with damages and costs, and authorizes a summary «judgment after thirty days from such termination of the action.