250 P. 702 | Cal. Ct. App. | 1926
The plaintiff in this proceeding appealed to the Superior Court of Los Angeles County from a judgment rendered against him in the justice's court of Los Angeles *630 township on July 21, 1925. Said appeal was perfected in the usual form, except that the undertaking therein was executed by the appellant and by one surety only. The case was called for trialde novo in the Superior Court on May 19, 1926, whereupon motion was made to dismiss the appeal upon the ground that it had not been perfected, in that the undertaking did not conform to section 978 of the Code of Civil Procedure. The plaintiff herein, appellant below, produced an additional surety who, it is alleged, was ready, able, and willing to qualify, and asked permission to forthwith amend the undertaking complained of by furnishing the requisite number of sureties, or to execute and file a new undertaking. The matters were submitted, and after consideration the motion last mentioned was denied, and the appeal was dismissed. This is a proceeding in mandamus, praying that said Superior Court be directed to vacate its order of dismissal, and to restore the cause to the calendar for trial.
[1] The plaintiff in this proceeding contends that the undertaking in controversy was merely defective, but not void, and that under such circumstances section
"An appeal from a justice's or police court is not effectualfor any purpose, unless an undertaking be filed with two ormore sureties in the sum of one hundred dollars for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in the sum of one hundred dollars plus a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money; . . ."
The question here presented has not heretofore been decided in this state, to our knowledge, but in jurisdictions having statutes embodying the exact language above quoted it has repeatedly been held that they are mandatory and cannot be enlarged by construction. *631
In Brickner v. Sporleder, 3 Okl. 561 [
The same question arose under a South Dakota statute in Smith
v. Gale,
In Johnson v. Superior Court,
"Section
The writ of mandate herein prayed is therefore denied.
Works, P.J., and Thompson, J., concurred.