23 P.2d 508 | Cal. | 1933
Action in mandate directed against the appellate department of the Superior Court of the County of Los Angeles to compel it to reinstate on its docket the appeal of defendant in a case begun in the municipal court of said county styled "Myron W. Goble,plaintiff and respondent, vs. American Surety Company of NewYork, a corporation, defendant and appellant", said superior court having entered an order purporting to dismiss the appeal for want of jurisdiction thereof.
[1] The petition correctly states the question of law involved as follows: "Is the superior court without jurisdiction of an appeal from the municipal court merely because the undertaking on appeal is filed prior to the filing of a notice of appeal, where the undertaking was filed subsequent to the entry of judgment in the municipal court and thereafter, and within the time allowed by law, a notice of appeal was filed?"
Plaintiff, in the trial court, sued defendant for breach of contract and obtained a money judgment in the sum of $2,000. This judgment was entered on July 5, 1932. Defendant, pursuant to due notice, brought on for hearing his motion for new trial, which motion was denied on August 29, 1932. On September 10, 1932, the formal notice of appeal from the judgment was filed. All these steps were admittedly taken in due time. However, the undertaking on appeal required by sections
The undertaking, however, correctly recites the date of rendition of judgment, the amount thereof, the parties to *379 the action; also that an appeal has been taken; that a stay of execution is desired and it covenants that the surety is bound in double the amount of the judgment, if the appeal is dismissed or the judgment affirmed, to pay said judgment, together with damages and costs, and authorizes a summary judgment after thirty days from such termination of the action.
The statute in question, section
Respondent contends that this law not only fixes the point of time beyond which an undertaking may not be filed, but also fixes the period when the right to file such instrument first accrues. We agree only with the first part of this contention. After the right of appeal accrues we see no efficacy in limiting the mere order in which the notice of appeal and undertaking may be filed. The reasons which may have prompted a different holding under other statutes are not present here. The notice of appeal need not be served, but the notice of filing the undertaking must be served on respondent, and his duty to inspect it and his right to except thereto do not arise until such notice is received. This fact renders it immaterial whether the one filing precedes the other so long as both papers are filed after the right of appeal has accrued and within the period prescribed by law. The five-day period after the notice of appeal is filed is simply an enlargement of the period for the filing of the undertaking but it does not forbid the filing of such undertaking at an earlier period after judgment.
We do not regard the cases of Buckholder v. Byers,
From the above holding it follows that we necessarily disapprove of the holding in the case of Goodman v. SuperiorCourt,
[2] The existence of a judgment and the right of appeal therefrom furnish sufficient consideration for the undertaking even though the undertaking precedes the filing of the notice of appeal. (Clarke v. Mohr,
The conclusion we have reached is in harmony with the rule announced for the construction of similar provisions in the following cases: French v. Powell,
Let a peremptory writ of mandate issue as prayed for, directing respondent court to reinstate the appeal in said action.
Curtis, J., Thompson, J., Seawell, J., Langdon, J., and Waste, C.J., concurred.
Rehearing denied. *382