Mandate. Plaintiff prays for the writ of this court compelling defendant to set aside its order dismissing the appeal of plaintiff heréin, in a certain action wherein J. J. Smalley is plaintiff and John June, plaintiff herein, is defendant, from an alleged judgment made and entered in the justice’s court of Cloverdale township, Sonoma county, in favor of said Smalley, and directing defendant to proceed to the hearing and trial of said action of Smalley v. June.
It appears that in said action a trial wаs had by a jury and, on July 20, 1910, the jury rendered the following verdict: “We, the jury, find for the plaintiff according to the complaint. J. A. Linde, Forеman. ’ ’ In the justice’s docket there is an entry of July 20, 1910, reciting that the case was called at 9 o’clock A. M. of that day, a jury impaneled to try the case (naming the members) and, “after argument by counsel the case was submitted to the jury; after bеing out a half hour the jury returned a verdict in favor of the plaintiff.” No other proceedings were taken by the justice and no other entry was made in his docket except that it appears from defendant’s answer herein that the said justiсe entered judg *128 ment on the verdict on December 30, 1910, and it is conceded that the justice neither rendered nor entered any judgment on the verdict except as last above stated. On July 22, 1910, defendant in that action, plaintiff now here, filed his nоtice of appeal to the superior court, “on questions of both law and fact,” and on July 23, 1910, filed with said justice an undеrtaking, reciting the amount of the alleged judgment, to wit, $110.29, principal, and $53, costs, and claiming a stay of execution and obligating the sureties in the sum of $300 and reciting that said sureties “promise on the part of the said appellant that the said appellant will pay the amount of said judgment so appealed from and all costs, if the appeal is withdrawn оr dismissed, or the amount of any judgment and all costs that may be recorded against him in the action in said superior, court.”
On July 26, 1910, thе justice transmitted to said superior court a certified copy of his docket in said action, and the pleadings, all notices, motions and other papers in said cause, the notice of appeal and the undertaking filed thеrein, all of which were received by the clerk of said superior court on said last-named day.
Defendant in the said action having failed to pay the clerk’s fees and having taken no further steps to prosecute his appeal, the plaintiff in that action paid the clerk’s fees, on December 8, 1910, and served and filed his motion in said superior court that he would move to dismiss said appeal “for failure to prosecute the same, and for unnecessary delay in bringing the said action to hearing. The said motion will be heard on the papers in the case.” On January 4, 1911, the court madе an order dismissing the appeal, with costs.
It is claimed by respondent here that at the time defendant in the action, Smalley v. June, took his appeal, no judgment had been entered on the verdict and the attempted appeal was ineffеctual for any purpose and the superior court was without jurisdiction to hear and determine the case and rightly dismissеd the appeal.
It is also claimed that the undertaking is insufficient, there being no separate bond to cover сosts on appeal as required by section 978, Code of Civil Procedure.
Section 974, Code of Civil Procedure, provides that: “Any person dissatisfied with a judgment rendered in a civil action *129 in a police or justice’s court, may appеal therefrom to the superior court of the county, at any time within thirty days after the rendition of the judgment.” And the notice must stаte whether “the appeal is taken from the whole or a part of the judgment.”
Section 891, Code of Civil Procedure, reads: “When a'trial by a jury has been had, judgment must be entered by the justice at once, in conformity with the verdict.” And the judgment “must be entered substantially in the form required in section 667. ... No judgment shall have effect for any purpose until so entered.” (Code Civ. Proc., sec. 893.)
It seems to us that the appeal was prematurely taken and that the superior court did not acquirе jurisdiction thereby.
Montgomery
v.
Superior Court,
*130 It follows that, as the superior court acquired no jurisdiction by the attempted appeal, this court cannot give it jurisdiction through the means of the writ prayed for; and this is true although the motion to dismiss was not made on this ground.
It is not necessary to pass upon the sufficiency of the undertaking.
The writ is denied.
Burnett, J., and Hart, J., concurred.