Bank of Escondido v. Superior Court of San Diego

Henshaw, J. One W. C. Smith, aggrieved at an adverse judgment of the justice’s court in an action wherein he was plaintiff and the Bank of Escondido defendant, gave notice of appeal to the superior court, and in due time fiLd the requisite undertaking. Two days thereafter one of the sureties left with the justice a written notice of withdrawal from the appeal bond, and the justice informed Smith’s attorney of the action of the surety. On February 5th, within the five days limited by law, the attorney of the bank excepted to the sufficiency of the sureties; on February 6th notice was given by Smith that the sureties would justify before the justice at 2 o’clock p. m. of February 7th. At the time appointed Smith’s attorney and the two sureties were present, as the respondent claims, and as the justice seemingly understood, for the declared purpose of justifying. The Bank of Escondido was not represented. Its attorney failed to appear, and no continuance was sought. No examination of the sureties was held. The justice declared that they were satisfactory, and that he believed them sufficient. In his docket the record of the proceedings appears as follows: “ Plaintiff, by his attorney, A. H. Glency, appeared at 2 p. m. Sureties present. Defendant did not appear.....The papers, together with transcript and bond as approved, transmitted to clerk of superior court.”

In the superior court the Bank of Escondido moved to dismiss the appeal upon the ground of the lack of jurisdiction of that court. The motion was denied, the court retained the action, and the bank sued out this writ of review.

Whether or not the surety, Nightingale, had the absolute right to withdraw from the undertaking, whether he was present in the justice’s court for the purpose of [46]justifying, as understood by the justice and claimed by the respondent, or merely because his office was in the courtroom of the justice, as testified to by the surety and contended by petitioner, are questions whose decision is unnecessary to this determination; for it clearly appears that petitioner, by his own laches, is estopped from asserting that there was no justification.

The justification of sureties has its origin in the fear of the exceptant that the surety may not be financially able to respond upon a breach of the obligation, and its object, as was said in Stark v. Barrett, 15 Cal. 364, is to afford the adverse party an opportunity to test, by personal examination, the responsibility of the sureties. The justification itself is the proof by the surety of his adequate pecuniary ability.