McCracken v. Superior Court

Works, J. This is an application for a writ of certiorari to review and annul the action of the superior court of Los Angeles County, in extending the time for filing an undertaking on appeal from a justice’s court, and in taking jurisdiction of the cause. The petitioner brought an action in the justice’s court, and recovered a judgment on the nineteenth day of April, 1890. On the twenty-fourth day of the same month the defendant served and filed his notice of appeal to the superior court, and on the second day of May filed in the justice’s court his undertaking on appeal. On the third day of May the petitioner duly excepted to the sufficiency of the sureties on the undertaking, and on the same day the defendant gave the petitioner notice that the sureties on said undertaking would justify before the justice on the seventh [75]day of May. On that day the petitioner appeared, but the sureties did not then or at any other time appear and justify. No new undertaking wap filed or deposit made by the defendant in the justice’s court. On the ninth day of May, and after the expiration of the five days within which the sureties might have justified, the superior court, the respondent in this proceeding, made an order giving the defendant in that action thirty days’ additional time within which to have the sureties justify, or give other sureties. After the expiration of thirty days from the time of the rendition of the judgment the petitioner moved to dismiss the appeal, which motion was denied, and the defendant was then allowed to give a new undertaking.

It is contended that, in making the order giving the defendant time within which to justify his sureties or give a new undertaking, and in permitting the defendant to file his undertaking after the expiration of thirty days from the time the judgment was rendered, the respondent exceeded its jurisdiction, and that its action should be annulled.

An appeal may be taken from a justice’s court to the superior court at any time within thirty days after the rendition of the judgment. (Code Civ. Proc., sec. 974.) To effectuate the appeal three things are necessary; viz., the filing of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all of these things must be done within thirty days after the rendition of the judgment. (Code Civ. Proc., secs. 974, 978; Coker v. Superior Court, 58 Cal. 178.) In Coker v. Superior Court, 58 Cal. 178, it was said: “All of these are jurisdictional prerequisites. None of them can be dispensed with, nor can any of them if not done be supplied, or if fatally defective be remedied, after the time limited by the statute; for, until all the prerequisites are completed, the appeal is not effectual for any purpose.”