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Engelken v. Justice Court

46 Cal. App. 512 Court First Appellate District, Division Two. Decision date 1920-03-10 Docket Civ. No. 3348 English

Contents

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p. 512
[Civ. No. 3348.
First Appellate District, Division Two.
March 10, 1920.]
F. W. ENGELKEN, Petitioner, v. JUSTICE COURT OF EDEN TOWNSHIP et al., Respondents.

Headnote

[1] Supersedeas&emdash;Motion in Trial Court to Dismiss Appeal&emdash;Restraining Hearing.&emdash;A writ of supersedeas will be issued out of the district court of appeal to restrain a justice court from proceeding with the hearing or determination of a motion to dismiss an appeal taken to the former court.
[2] Appeal &emdash; Sufficiency of Undertaking •&emdash; Jurisdiction to Hear Motion to Dismiss.&emdash;A motion to dismiss an appeal from a judgment of a justice court, based upon the ground that a proper undertaking was not filed, can be made in the appellate court only.
APPLICATION for a Writ of Supersedeas to restrain a justice court from hearing a motion to dismiss an appeal. Granted.
The facts are stated in the opinion of the court.
J. C. Thomas for Petitioner.
Charles Quayle for Respondents.

[1] ~Uhis is an application for a writ of siopersedeas to restrain the respondent from proceeding further with a motion (dated February 5, 1920) to dismiss an appeal which has been taken to this court. Said motion

p. 513
made in the trial court was based upon the ground that the undertaking which was filed by appellant was not properly filed.

[2] It is not necessary at this time to pass upon the question of the propriety of the filing of the undertaking. But as a motion to dismiss an appeal can be made in this court only, and such motion must he denied if a proper undertaking, approved by a justice of this court, is filed, it is ordered:

That a writ of supersedeas issue, commanding the respondent to proceed no further with the hearing or determination of said • motion, and, to avoid question as to the sufficiency of the undertaking, it is ordered that the same may be presented to a justice of this court for approval.