199 P. 817 | Cal. Ct. App. | 1921
Appellant filed a petition in the superior court of the county of San Diego for a writ of prohibition directed against the recorder's court of East San Diego. A general demurrer was interposed by the defendant and was sustained and the appeal is taken from the judgment entered upon the petitioner's failure to amend.
The petition alleged the beginning of an action in the recorder's court of East San Diego wherein one Ava C. Roberts was plaintiff and L. Gadette was defendant; that said defendant was at the commencement of said action a resident of another state; that in said action the defendant *73
therein had filed a demurrer and at the same time filed with the recorder's court and served upon the plaintiff a notice requiring security for costs as provided in section
The case of Carter v. Superior Court,
In that case the plaintiff was a resident of Oregon; defendant made demand, as provided in section
In construing section
[1] It will be noted that section
Referring further to Carter v. Superior Court, supra, it is there held that prohibition will lie to prevent further proceedings pending the filing of the undertaking, and that a defendant is entitled to such a writ because he has no plain, speedy and adequate remedy at law.
[2] Respondent suggests that the demand was insufficient in that it does not, in terms, state that the plaintiff was either a foreign corporation or a nonresident. This defect is one of uncertainty. The demand is for "security from plaintiff for defendant's costs and charges . . . as provided for under sec.
[3] Respondent urges that a demand alone is not sufficient to stay the proceedings, but asserts that there must be, in addition to demand, proof submitted to the court that the plaintiff is either a nonresident or a foreign corporation. No other action on the part of the demanding party appears to have been contemplated by the legislature than that he should require security as provided in section
The decisions of courts of last resort of other states are of but little value in passing upon this point because the statutes which they interpret, in most instances, especially provide that where security is required on the ground of nonresidence of the plaintiff, the defendant must proceed by motion or notice accompanied by affidavits. The statute of West Virginia, which was construed in Dean v. Cannon,
The judgment is reversed and the superior court is directed to overrule the demurrer.
Finlayson, P. J., and Works, J., concurred.