Becker v. Schmidlin

LORIGAN, J.

This is an appeal from a judgment and order dismissing an action. The suit was brought to recover damages for slander, the complaint setting forth several causes ■of action, and it being alleged that the slanderous words were uttered by defendant, of and concerning the plaintiff at various dates between the first day of December, 1904, and the first day of February, 1905. The complaint was filed

[670]

October 16, 1905, and was accompanied by an undertaking in the sum of five hundred dollars, filed on the same day, in favor of defendant as provided by statute. (Stats. 1871, sec. 1, p. 533.)

Upon January 26, 1906, upon notice of defendant excepting to the sureties on the undertaking filed and objecting to the undertaking itself and the manner of its execution and requiring that the sureties justify, that matter came up for disposition before the department of the superior court in which the action was pending. At the hearing counsel for defendant waived objection to the sufficiency of the sureties themselves, but objected that they had never executed any undertaking in the action. From the showing-made it appeared that the undertaking in question had been executed by the sureties on October 9, 1905, for the purpose of being used in ánother action for slander between the same parties which was then pending in another department of the superior court of Santa Clara County. In that action an undertaking had been given which had been objected to and it was intended to file the undertaking now under consideration in place thereof. The undertaking, however,' was not used, the motion to permit it to be filed being denied and that action dismissed. Thereafter, the attorney for plaintiff, who-was likewise a notary public before whom the sureties had verified the undertaking in question, being about to commence substantially the same action in another department of the superior court, saw the sureties, who consented that the undertaking they had signed might be used in this other contemplated suit. The notary thereupon changed the dates of the undertaking and of the verification from the ninth to the eleventh day of October, 1905, and as so changed, filed it with the complaint in this present action.

These facts appearing, counsel for defendant immediately moved that the action be dismissed upon the ground that no undertaking had been filed as required by the statute. The matter of the sufficiency of the undertaking was thereupon submitted to the court, and the judge thereof stated that he was satisfied that the undertaking was insufficient. Thereupon, counsel for plaintiff moved for leave to file a new undertaking—no new undertaking being then presented—to which offer objection was made by counsel for defendant and