Mash v. Superior Court

WILBUR, C. J.

This is an application for a writ of

certiorari

to review an order of the respondent dismissing an appeal from the justice court. In view of the fact that the case of the petitioner depends in part upon a question of fact, as to what he did in perfecting his appeal, and as this fact is not shown in the return to the writ, we announced to the parties that we would treat the application as one for

mandamus

to compel the respondent to proceed with the trial and we referred the disputed question of fact to the Honorable Daniel C. Deasy, judge of the superior court of the city and county, to hear the evidence offered on that subject and to report his findings. This report having been filed we will state the facts, as admitted and as thus shown.

A judgment of a justice court was rendered and entered against the petitioner for the sum of $182.65, December 14, 1922. On January 10, 1923, within the thirty days allowed for an appeal, the petitioner gave notice of appeal and filed an appeal bond for $100 costs and for $370, the latter sum being more than twice the amount of the judgment. On January 13, 1923, the plaintiff in that action served and filed a notice requiring the sureties to justify. On the same day the defendant served and filed a notice that the sureties would justify before the justice of the peace January 16, 1923, at 2 P. M. At that time the sureties presented themselves for justification and the plaintiff failed to appear. The justice of the peace, however, at the time and place fixed for the sureties to justify before him, indorsed an order upon the bond excepted to as follows: “It is hereby ordered that a cash bond in the sum of $182.65 be substituted for the bond on file herein and that the sureties on said bond be released on deposit of said cash bond.”

The petitioner avers that he made a tender of such deposit of cash and that it was refused, and this allegation being

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denied for lack of information and belief, the reference hereinbefore referred to was made, and Judge Deasy reports his finding as follows: “I find it is a fact that on the 16th day of January, 1923, petitioner S. L. Mash, tendered to the clerk of the Justices Court of the City and County of San Francisco the sum of $182.65. It is not true that said clerk of said Justices Court refused to accept said money, but it is the fact that said clerk said that he would accept the same, but that unless a cost bond in the sum of $100 were filed with him in addition to the deposit of said sum of $182.65 he would issue execution if demanded by the plaintiff in the action of