*1 No. In Bank. A. 14503. 1934.] [L. COURT GARMO, Petitioner, DE C. SUPERIOR
G. v. Re al., et OF THE OF ANGELES COUNTY LOS spondents.
G. C. De Garmo, pro. Newby Newby, W. M. per., & Crane for Petitioner. Cross,
Everett W. M. Mattoon, Counsel, Fred *2 Deputy County Hughes & Meserve, Counsel, Mumper, and Robertson Respondents. A hearing granted COURT. in this сase after was by
decision Appellate Appeal, the of District Court Second District, Upon consideration, Division we are One. correctly satisfied that determined the said court issues, opinion and adopt we Mr. Justice therefore of pro tempore Desmond, together opinion part of rehearing, of the court on petition for as the of this They read as follows: “This application is an for a of mandate or mаy appropriate other writ as be of to secure cancellation judge an order made aby оf the Court of Los Angeles County approving undertaking upon an plaintiff of in favor entered sum .from $37,480; by county of and issuаnce also secure aof writ of execution which plaintiff, petitioner, here the has obtained. cоnducting
“While hearings the trial court was sufficiency undertaking of the determine entered into post by sureties, offered to various the defendants the sum county clerk be held $5,000 of as additional having security bond, under the court indicatеd that it $20,000 way in the of an additional desired sureties above $5,000 undertaking, appearing and the on those cash bе- in lieu thereof. Counsel for ing agreed offered defendant Lamp ton, check endorsed to L. E. County that a cashier’s part the bond Clerk, stand as or undertaking, should by Clerk, be held ‘the sum to to abide the reviewing court in decision case applied affirmed shall be from is satisfaction of arrangement judgment’. This followed a by declaratiоn judge allowing he hesitated about every trial pre- item aggregate part undertaking sented $74,960. question, therefоre, be no There can that the was in- accepted .for and part tended
85 language employed especially in undertaking, view upon the document entered the court endorsement deposited appellants having ‘May 22, 1933. The as follows: under- $5,000.00 part of the with the clerk the sum taking satisfy and to final any be used to approved. appellants, Walton is written by consid- Wood, Judge.’ J. This conclusion confirmed approving the eration of the formal signed May 1933, 22, 1933. as of pro nunc tunc foregoing apparent from the the under taking upon and apрeal, furnished requirement approved, not meet the does section Procedure, of the of Civil because that Code section provision nature, part no of a dual makes for a bond cash part expressly provides surety, but for a written under taking binding personally pay sureties whatever is due appellant upon from affirmance of judgment, appel pay. lant fails to Section of the Code of Civil Pro provides cedure ‘in all cases where an undertaking is required appeal by the provisions title, *3 in below of the amount the.
from, equivalent filing shall be to undertaking’. Inas much as in this $37,480, case was it is mani deposit fest that does not require meet the ment of section 948. “ We have then a situation in appellant which has failed to furnish a sufficient or a sufficient cash deposit provisions. within the terms the code As dated Superior n Court, 53 App. in Malm v. Cal. 425, 428 [200 : ‘A stay upon of execution Pac. 361] therefrom a matter of statutory regulation only upon compliance can be had a substantial ’ provisions of the code. Sinсe there is here no substantial compliance requirements, with the code it follows peti that is entitled his tioner to writ. suggested by respondent Lampton in peti his rehearing that tion the writ of mandate may prop not erly against him, Superior issue because the Court was not party made a before this court. In argument under suggested heading that it is that where the inter parties be affected ests will issuance a writ, they be made parties must to proceedings. Superior Court,
“The together Lampton respondent as county clerk, respondent pro- was namеd in as a this ceeding. The court issued its alternative writ to the alone. If purposes argument we admit for the we shоuld have issued Superior writ to Court well clerk, as to agree and if we further that it would practice have beеn parties better to inter- direct that in in est the action in brought the court below be in to defend their interests in matter, presen- nevertheless the actual tation thereby to this was, fact, not altered. Re- spondent Lampton represented here the same coun- appeared sel who had for the defendants the action in the court below; and we doubt that argument do not proceeding upon made them in here the merits was argument they exactly the same which would have made Superior the writ issued Court and had been Therefore it be an parties in in the action. would interest grant rehearing merely purpose idle act to bringing parties. in additional
“Thе peremptory order herein made for issuance of solely been this court upon rested upon by the оrder of the Court relied re- spondent refusal justify his to issue the execution was void order. From this we concluded that the case here ‘a situation in presented which fur- has failed to or a sufficient cash nish a sufficient again рrovisions’. the code We the terms of adhere within resulting that the writ should issue conclusion compel being perform- clerk, purpose ‘to respondent specially enjoins, the law duty an act which ance (Code 1085.)” resulting’ Prоc., office. Civ. from his sec. mandate a writ of issue to the It is ordered County, respondent Angeles herein, of Los command- Clerk prayed issue an ing him to days thirty entry from the within for, unless *4 stay appellants ap- file lower proved Dissenting. I thinkthe bond is
PRESTON, J., sufficient. Rehearing denied. dissented.
Preston, J.,