Majority
p. 115[No. 11031. Department Two. June 4, 1885.] TOWNSEND WOOD et al., Petitioners, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent.
Headnote
Appeal fkoii Justice’s Coubt—Undeetaeing—Justification of Subeties.— Where the sufficiency of the sureties upon an undertaking on appeal from a Justice’s Court is excepted to, the appeal cannot be perfected by filing a new undertaking without notice to the adverse party.Application for a writ of review. The facts are stated in the opinion of the court.
Geil & Morehouse, for Petitioners.
Wm. H. Webb, for Respondent.
Certiorari. In perfecting his appeal from the Justice’s Court to the Superior Court, the appellant gave an undertaking. The adverse party excepted to the sufficiency of the sureties. Neither the sureties in thq undertaking nor other sureties justified; but, instead thereof, the appellant filed a new undertaking with other sureties. In so doing he gave no notice as required by the last clause of section 978 of the Code of Civil Procedure. Such being the case, “ the appeal must be regarded as if no such undertaking had been given.” The statute is
p. 116
peremptory. Without the justification of the sureties named in the undertaking, or other sureties in their stead, upon notice to the adverse party, the appeal was not perfected, and the Superior Court has no jurisdiction of the case. The motion to dismiss the appeal should have been granted.
The proceedings in the Superior Court are annulled.