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Hertz v. Superior Court

35 Cal. App. 83 Court First Appellate District. Decision date 1917-10-22 Docket Civ. No. 2283 English

Contents

Majority

p. 83
[Civ. No. 2283.
First Appellate District.
October 22, 1917.]
ALFRED HERTZ, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Headnote

Costs—Undertaking in Actions by Nonresidents—Power to Extend Time.—Under the provisions of section 1054 of the Code of Civil Procedure, the superior court has power to extend the time in which to file the bond for costs required of nonresidents and foreign corporations under section 1036 of such code, and where the bond is filed within the extended time, the action will not be dismissed.
APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the First Appellate District to compel the dismissal of an action.
The facts are stated in the opinion of the court.
Eric J. Rosenstirn, and Brewton A. Hayne, for Petitioner.
Hartley F. Peart, and Gus L. Baraty, for Respondent.

Petition for writ of mandate directed to respondent commanding it to dismiss a certain action pending before it because of the alleged failure to file a good and sufficient bond under the provisions of section 1036 of the Code of Civil Procedure.

We are satisfied that the court below was empowered, under the provisions of section 1054 of the Code of Civil Procedure, to extend the time in which the bond in question might be filed; and we think, upon the authority of Sciutti v. Pacific Coal Co., 30 Utah, 462 , [8 Ann. Cas. 942, 85 Pac. 1011 ], and the case of Kissler v. Budge, 24 Idaho, 246 , [ 133 Pac. 125 ], the court was within the law when it refused to dismiss the cause after a good and sufficient bond had been filed. For that reason the writ is dismissed. .

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 20,1917.

Statutes and regulations cited