230 P. 456 | Cal. Ct. App. | 1924
This is an original proceeding in certiorari to annul a judgment of the superior court for Tulare County in an action pending in that court on appeal from the judgment of a justice of the peace.
Petitioner was the defendant in an action in the justice's court of Alpaugh Township, brought against him for the recovery of money. The justice's judgment, which was in petitioner's favor, was docketed March 19, 1924. In due *62 time the plaintiff in the action served and filed in the justice's court a notice of appeal from the judgment. The notice bore date the 9th of April, 1924, but was not filed until the 12th of April. Subsequently to the filing of the notice, but on the same day, the appealing party filed an undertaking on appeal, bearing date the ninth day of April. That undertaking, after the title of court and cause, is as follows: "Whereas, C. Fitch, the plaintiff in the above entitled action, has appealed to the Superior Court of the County of Tulare, State of California, from a judgment made and entered against him in said action on the 19th day of March, 1924; now, therefore, in consideration of the premises and ofsuch appeal, we, the undersigned, do hereby jointly and severally undertake and promise in the sum of One Hundred ($100.00) Dollars that the said appellant will pay all costs which may be awarded against him on said appeal or on a withdrawal or dismissal, not exceeding One Hundred ($100.00) Dollars, to which we acknowledge ourselves jointly and severally bound. In witness whereof we have hereunto set our hands this 9th day of April, 1924. C. R. McEvers, C. E. Baxter." (Italics ours.) It appears from the notary's jurat that the sureties' affidavit as to their qualifications was sworn to by them on April 9, 1924.
Petitioner contends: (1) that the undertaking is ineffectual because it refers to a nonexistent appeal, and (2) that it is not in the form required by the statute.
[1] Without doubt the undertaking must identify the appeal which it is intended to support. (Little v. Thatcher,
Petitioner's argument is based upon two erroneous assumptions. [2] Though the undertaking unquestionably wassigned by the sureties on or prior to the day when they made oath as to their qualifications, it was not executed until it was filed with the clerk, and that was not done until April 12, 1924, immediately following the filing of the notice of appeal.[3] In order to "execute" the undertaking it was necessary that all those things should be done which were necessary to render it a binding contract as between the sureties and the respondent on the appeal. This included the delivery of the undertaking, or the doing of that which, under the statute, is the substitute for delivery, namely, the filing of the instrument. (State v. Alta Silver Min. Co.,
[4] Equally false is petitioner's assumption that the appeal was brought into existence by the filing of the notice of appeal. Not until the undertaking was filed was there an actual, effectual appeal. Though it is stated in section 974 of the Code of Civil Procedure that an appeal from a justice's court is taken "by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party," it is declared in section 978 that the appeal "is not effectual for any purpose" unless the undertaking on appeal be filed. An appeal that is not effectual for any purpose is a nullity. (Kelsey v. Campbell, 38 Barb. (N.Y.) 241.) In Kaltschmidt v.Weber,
[5] From the foregoing we think it clear that the appeal referred to in this undertaking was one which came into being at the instant when that instrument was executed, i.e., when it was filed. [6] The attorney for the appellant became the agent of the sureties for the purpose of filing the undertaking. (Hibernia etc. Soc. v. Freese,
'The authorities cited by petitioner are clearly distinguishable from the present case, In Hibernia etc. Soc. v.Freese, supra — the case mainly relied upon by petitioner — the appellant, after having served and filed one notice of appeal, served and filed a second notice. The undertaking was signed by the sureties after the filing of the first notice but before the serving or filing of the second. It is obvious that at the time when the sureties signed the undertaking, and likewise at the time when they authorized the attorney to complete its execution by filing it with the clerk, the only *65 appeal which they could possibly have had in mind was the one which had been initiated and partially perfected by the serving and filing of the first notice of appeal. The case bears no resemblance whatever to the situation here presented. Here there was but one notice of appeal; the appeal itself, as we have shown, became an "effectual," perfected appeal upon the filing of the undertaking; and the latter document, speaking of conditions which obtained at the instant when its execution was completed, referred to and identified an existing appeal — one which came into being synchronously with its own birth as a fully executed undertaking.
In support of his second point petitioner presents an argument substantially as follows: The undertaking required by the statute is one whereby the sureties undertake to pay "the costs on the appeal" (sec. 978, Code Civ. Proc.); the words "costs on the appeal" include any costs to which the adverse party may become entitled if the appeal be dismissed; upon a dismissal of an appeal the costs are not awarded on the appeal, but are an incident as a matter of law — citing Duncan v.Times-Mirror Co.,
We conclude, therefore, that the appeal was properly taken and that the superior court possessed jurisdiction to enter the judgment given by it on the appeal. Wherefore the judgment of the superior court is affirmed.
Works, J., and Craig, J., concurred.
