Majority
Headnote
Appeal prom Justice’s Court—Filing op Undertaking Before Notice —Proper Dismissal—Mandamus Disallowed.—Upon appeal from a justice’s court to the superior court, where the undertaking on appeal was prematurely filed before the filing of the notice of appeal, the superior court acquired no jurisdiction of the appeal, and properly dismissed the same; and a writ of mandate will not lie directing the superior court and the judge thereof to vacate and set aside the order dismissing the appeal.The affidavit discloses that a certain judgment was rendered against petitioner, as defendant in a certain action brought in the justice’s court, on the seventh day of March, 1912, for the sum of $234.60; that thereafter, on the fourteenth day of March, an undertaking was filed in the justice’s court staying execution on said judgment, and also an undertaking on appeal; that on the third day of April following a notice of appeal was filed, and thereafter the amount required by law to be paid for the filing of papers on appeal was duly paid; that thereafter, on July 1st, the superior court dismissed the appeal. This application prays for a writ directing the respondents to vacate and set aside the order made and entered dismissing the appeal. We are of opinion that this writ should be denied upon the authority of Rigby v. Superior Court, 162 Cal. 334 , [ 122 Pac. 958 ]; W. P. Jeffreys & Co. v. Superior Court, 13 Cal. App. 193 , [ 109 Pac. 147 ], and Stimpson Scale Co. v. Superior Court, 12 Cal. App. 539 , [ 107 Pac. 1013 ].
Application for writ denied.
Cases cited
- Rigby v. Superior Court 162 Cal. 334 p. 457
- W. P. Jeffries Co. v. Superior Court 13 Cal. App. 193 p. 457