115 P. 649 | Cal. | 1911
Lead Opinion
Prohibition. The petitioners recovered a money judgment in a justice's court for $82.70. Defendant therein gave notice of appeal to the superior court, and in due time filed the following undertaking: —
"In the Justice's Court of Oakland Township, County of Alameda, State of California.
"George Edwards, Noel Stone and John Kleis, "Plaintiffs, vs. "F.E. Miller, "Defendant.
"Know all men by these presents that we, F.E. Miller, principal and J. Russo and B. Ciancuarulo sureties, are held and firmly bound unto George Edwards, Noel Stone and John Kleis, in the sum of one hundred sixty-five 40/100 dollars, lawful money of the United States of America, being double the amount of the judgment and cost mentioned herein, to be paid to the said George Edwards, Noel Stone and John Kleis, their executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.
"Signed with our hands, sealed and dated this 2nd day of November, 1909.
"The condition of the above undertaking is such, that whereas the said Edwards, Noel Stone and John Kleis obtained a judgment against the said F.E. Miller, before James G. Quinn, justice of the peace of Oakland Township, in and for the county of Alameda, state of California, on the 25th day of October, 1909, for $73.20, principal sum, and for $9.50/100 dollars costs; and whereas the above bounden F.E. Miller is desirous of appealing from the decision of said justice to the *712 superior court in and for the county of Alameda, and a stay of proceedings is claimed. Now, if the above-bounden shall well and truly pay or cause to be paid, the amount of the said judgment and all costs, and obey any order the said superior court may make therein, if the said appeal be withdrawn or dismissed, or pay the amount of any judgment and all the costs that may be recovered against the said appellant in the said superior court, and obey any order the said court may make therein, then this obligation to be null and void; otherwise to remain in full force and virtue.
"F.E. MILLER, "J. RUSSO, "B. CIANCIARULO."
The petitioners moved to dismiss the appeal upon the ground that this undertaking was insufficient to comply with the requirements of section 978 of the Code of Civil Procedure, as construed in McConky v. Superior Court,
Petitioners base their application for the writ upon two grounds: —
First. That the order of dismissal was a final disposition of the cause — divesting the superior court of any power to revive it or resume any jurisdiction over it, and this notwithstanding its jurisdiction at the time of the order of dismissal may have been clear and indisputable.
Second. That by reason of the defects of the undertaking, the superior court never acquired jurisdiction of the appeal.
As to the first objection it need only be said that when according to the uncontroverted facts it appears that an appeal to the superior court has been duly perfected and diligently prosecuted, a dismissal of such appeal is in effect nothing more nor less than an attempted abdication of a jurisdiction which the court is bound in every proper case to exercise. It is, in other words, a refusal to decide a cause which it is the plain statutory duty of the court to decide, the remedy for which dereliction is the writ of mandate. But if in such case the superior court discovers its mistake, it is not bound to wait for a peremptory writ of mandate, commanding it to do what it is *713 its duty to do — what, indeed, it could not otherwise be commanded to do. Evidently in this case the judge of the superior court concluded that he had refused to exercise his jurisdiction in a proper case, and that the order of dismissal was a nullity. If he was right on the first point we have no doubt of the correctness of his conclusion as to the nullity of the order, and the only question left for consideration is the sufficiency of the undertaking to give the superior court jurisdiction of the appeal.
The latest decision of this court upon that point (Jones v.Superior Court,
The decisions in Duffy v. Greenebaum,
The writ of prohibition is denied.
SLOSS, J. LORIGAN, J. ANGELLOTTI, J. SHAW, J. MELVIN, J. HENSHAW, J.
Addendum
In view of what is said in the concurring opinion of my associates, I desire to say with respect to the case of Ward v.Superior Court,
I think I am safe in adding that ever since the decision inDuffy v. Greenebaum, the superior courts throughout the state had understood the law to be that they were without jurisdiction to hear an appeal from a justice's court, unless there was a separate undertaking — distinct from the stay bond — to pay costs — and that numerous appeals have been dismissed in which parties have filed undertakings, such as that which was held sufficient to support the appeal in Jones v. Superior Court. And I have no doubt that the first order of the superior court dismissing the appeal in this case was made in obedience to those earlier decisions, and set aside when attention was called to the latter. *716