Blair v. Hamilton

By the Court, Sanderson, J.: This action was brought in the Court of a Justice of the Peace in Sacramento County, was tried and final judgment rendered for the defendant. Thereafter, and within the time prescribed by law, the plaintiff took an appeal, by filing and serving a notice of appeal in all respects sufficient in law, and in due time thereafter filing a bond in due form. Within five days after the filing of the undertaking the defendant excepted to the sufficiency of the sureties, as provided in the six hundred and twenty-eighth section of the Practice Act. The sureties did not justify before the Justice upon notice to the adverse party within five days thereafter, as provided in the section already cited. Nevertheless, the Justice transmitted the case to the County Court, and it was placed upon the calendar of that Court for trial. Thereupon the defendant moved [51]the Court to dismiss the appeal upon the ground that the failure of the sureties to justify, on notice, rendered the undertaking inoperative and left the appeal without the support of an undertaking, or, in the language of the statute, “ as if no undertaking had been given.” This motion was based upon the notice of the defendant excepting to the sufficiency of the sureties, accompanied by an affidavit of the defendant showing service of the notice and the subsequent action of the Court and the parties in the premises. According to this affidavit the notice was left by the defendant with the Justice, to be served by him on the plaintiff, and the Justice served the same, with a further notice that he would take the justification of the sureties at a certain time therein specified; that the plaintiff and defendant appeared before the Justice at the time appointed, and that the Justice then asked the plaintiff if he declined to have his sureties j ustify, and he replied that he did, stating in addition that he would not ask his sureties to come up there any more, and that he had done all he intended to do in reference to the undertaking; that the defendant was never notified that the sureties would justify, and that they never did justify; and further, that the plaintiff never filed any other undertaking in lieu of the one to which exception was taken.

Neither the notice of appeal nor the undertaking had been indorsed as filed by the Justice, but the entries in his docket showed the dates • at which they were respectively deposited with the Justice. The Court ordered the Justice to indorse them as filed of the dates, respectively, as entered in his docket and denied the motion. It appears from the recitals in the order of the Court denying the motion to dismiss, that the Justice and the defendant were examined as witnesses touching the questions of fact involved in the motion, but the Court did not at that time draw up any finding. Subsequently, however, but at the next term, the Court prepared a finding of facts, with conclusions of law, and ordered it to be filed in the case as of the date at which the motion had been heard.