Keene v. Superior Court

GRIFFIN, P. J. Petitioner is the plaintiff and appellant in two companion cases, which he has appealed from the Marieopa-Taft Judicial District to the Kern County Superior Court. Petitioner refers to the court from which this appeal was perfected as both a municipal and a justice court. Certain exhibits refer to it as a justice court. We will consider this petition as if it involves an appeal from a justice court.

The judgments in the justice court action were rendered in favor of Fred Harling, defendant and real party in interest, and against plaintiff and petitioner Walter M. Keene. They were entered on June 22, 1959, and notice of rendition of judgment was served within the 30-day requirement of section 974, Code of Civil Procedure. Notice of appeal was filed in that court on July 2, 1959 and thereafter served on the real party in interest. Apparently the appeal was taken both on the law and the facts so as to require a trial de novo in the superior court. On July 2, 1959, petitioner filed an undertaking on appeal in the justice court. This filing was within the five-day requirement of section 978a, Code of Civil Procedure. Petitioner alleges that no written notice of the filing of the undertaking was served on the real party in interest as required by that section. In reply, it is indicated by the real party in interest that it was served on December 24, 1959, about six months after it was filed and after the action had been transferred to the superior court. Apparently service of notice of filing of the undertaking is not jurisdictional and the appeal must be considered perfected. (Stewart v. Superior Court, 29 Cal.2d 63 [172 P.2d 683].)

On November 21, 1959, the real party in interest served a notice of exception to sureties of the petitioner. This notice was never filed. Apparently the petitioner, through the county clerk, by letter dated November 24, 1959, applied for a hear[852]ing in the superior court to justify his sureties, hut this was refused since the notice of exception of sureties had not been filed with the court and accordingly no date could be set. A similar request was made on November 30, 1959. On that date the petitioner received notice of failure to justify sureties from the real party in interest and again, on December 1, 1959, the county clerk wrote to petitioner advising him that no notice of exception had been filed. Although section 978a does not specifically require that the notice of exceptions to sureties be filed with the court, cases contemplate that such a filing will be made. (McCarty v. Superior Court, 30 Cal.App. 1 [159 P. 736]; Consolidated Lumber Co. v. Superior Court, 33 Cal.App. 126 [164 P. 612]; Budd v. Superior Court, 14 Cal.App. 256 [111 P. 628].)