105 P. 935 | Cal. Ct. App. | 1909
This is an application for a writ of review occasioned by the dismissal of the appeal of the said A. M. Bergevin Company from a certain judgment of the justice court of Township No. One in said Amador county. The order of dismissal was based upon the ground of the insufficiency of the bond on appeal.
It is not claimed that the proceedings of the superior court up to the time of said dismissal were in any respect irregular, but the contention is that the court, in holding that the bond was insufficient, exceeded its jurisdiction, or, in other words, did not "regularly pursue" its authority within the meaning of section
What constitutes a departure by a court from the regular pursuit of its authority is often difficult to determine, although the decisions of our supreme court would seem to leave no doubt as to what should be the conclusion here. *645
In Buckley v. Superior Court,
Here there is no possible doubt that the superior court had authority to hear the motion, but its jurisdiction to try the case depends upon the question whether there was an undertaking on appeal. If there was no such undertaking as the statute provides, it had no jurisdiction of the case, and therefore in the lawful exercise of its authority, the only course to pursue was to dismiss the appeal. If there was such an undertaking, it not only had complete jurisdiction of the cause but it could not divest itself of said jurisdiction by dismissing the appeal. If the court has the power to determine its jurisdiction, it would follow that whether there is or is not an undertaking, the court may have jurisdiction either to try or not to try the cause.
The truth is, undoubtedly, that where it is implied or expressly declared that the court determines its own jurisdiction beyond the reach of the writ of review, it must be accepted with the qualification that where it is based upon disputed facts, or upon a rational inference from the acts of the parties and the proceedings taken, the court's determination of its jurisdiction is binding upon a reviewing tribunal in a proceeding of this kind.
In the case at bar, the court dismissed the appeal for the reason stated that the surety (The American Surety Company of New York) had bound itself to answer for only one of the appellants, "that as a surety was entitled to stand upon the precise terms of his contract, to hold that the surety company was liable for both defendants was to read something into the contract that had not been assented to by the surety." It appears also by the return of respondent that counsel for appellants at the argument of the motion to dismiss the appeal expressed a grave doubt as to the sufficiency of the undertaking. This doubt is amply justified by the language used which, as far as necessary to quote, is as follows: "Whereas, the said defendants are dissatisfied with the said judgment *647 and are desirous of appealing therefrom to the superior court of the county of Amador, and pending such appeal, claim a stay of proceedings and are desirous of staying the execution of the said judgment so rendered as aforesaid;
"Now, therefore, in consideration of the premises, of such appeal and of such stay of proceedings and execution, all as aforesaid, we, the undersigned American Surety Company of New York . . . as surety do hereby undertake and acknowledge ourselves bound in the sum of five hundred and thirty-four dollars (being twice the amount of the said judgment including costs) and promise on the part of said appellant that the said appellant will pay the amount of the said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the said superior court." It cannot be said to be an unwarranted construction of the foregoing instrument to hold that the surety bound itself to answer for a judgment against appellant Bergevin and not against Bergevin Company. At least, the undertaking is so uncertain in that respect that the court did not exceed its jurisdiction in dismissing the appeal as to the appellant company.
In Commercial Bank v. Wells,
In McAulay v. Tahoe Ice Co.,
It is apparent here that, according to the strict terms of the undertaking, the surety would not be liable for a judgment against one of the appellants. And indeed, on account of the uncertainty in said terms, it is at least doubtful whether the undertaking is sufficient as to either appellant.
In the case of Zane v. De Onativia,
If that decision is right — and we do not question it — there can be no doubt that the court below was justified in dismissing the appeal of Bergevin Company. The significance of the undertaking is to be determined from the language used and not by the application of section
We can see nothing in the cases cited by petitioners militating against the views herein expressed. Of these we notice Jones v. Superior Court,
In Pacific Window Glass Co. v. Smith, supra, the pivotal question was, as stated by the court and conceded by counsel, the intent and purpose with which a certain deposit in lieu of a bond was made by the petitioners with the justice of the peace. It was properly held that it was clearly their purpose to guarantee the payment of the costs of appeal.
Petitioner contends also that the court below should have allowed a new undertaking to be filed, and that upon this application an order to that effect should be made. We are bound, however, by the statement of respondent that no application was made to file said undertaking until after the appeal was dismissed. This was manifestly too late. (Zane v. De Onativia, supra.) Section 954 of the Code of Civil Procedure makes provision for the filing of a sufficient undertaking in the supreme court or the district court of appeal before the hearing of the motion to dismiss where the undertaking already given is insufficient. There seems to be no similar provision in reference to appeals from the justice court, but it is at least too late for the superior court to allow an additional undertaking to be filed after the appeal is dismissed. The court would be without jurisdiction to make such an order. And if this application could subserve the purpose of a writ of mandate, this court would have no authority to direct the lower court to do something in excess of its jurisdiction.
We think it cannot be held that the superior court exceeded its jurisdiction in dismissing the said appeal, and the order to show cause is discharged and the writ denied.
Chipman, P. J., and Hart, J., concurred, *650