86 Cal. 74 | Cal. | 1890
This is an application for a writ of certiorari to review and annul the action of the superior court of Los Angeles County, in extending the time for filing an undertaking on appeal from a justice’s court, and in taking jurisdiction of the cause. The petitioner brought an action in the justice’s court, and recovered a judgment on the nineteenth day of April, 1890. On the twenty-fourth day of the same month the defendant served and filed his notice of appeal to the superior court, and on the second day of May filed in the justice’s court his undertaking on appeal. On the third day of May the petitioner duly excepted to the sufficiency of the sureties on the undertaking, and on the same day the defendant gave the petitioner notice that the sureties on said undertaking would justify before the justice on the seventh
It is contended that, in making the order giving the defendant time within which to justify his sureties or give a new undertaking, and in permitting the defendant to file his undertaking after the expiration of thirty days from the time the judgment was rendered, the respondent exceeded its jurisdiction, and that its action should be annulled.
An appeal may be taken from a justice’s court to the superior court at any time within thirty days after the rendition of the judgment. (Code Civ. Proc., sec. 974.) To effectuate the appeal three things are necessary; viz., the filing of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all of these things must be done within thirty days after the rendition of the judgment. (Code Civ. Proc., secs. 974, 978; Coker v. Superior Court, 58 Cal. 178.) In Coker v. Superior Court, 58 Cal. 178, it was said: “All of these are jurisdictional prerequisites. None of them can be dispensed with, nor can any of them if not done be supplied, or if fatally defective be remedied, after the time limited by the statute; for, until all the prerequisites are completed, the appeal is not effectual for any purpose.”
The time within which these jurisdictional prerequisites shall be completed cannot be extended by an order of court. (Roush v. Van Hagen, 17 Cal. 122.) It is evident that the respondent acted under the belief that section 1054 of the Code of Civil Procedure gave it authority to make the order; but, in our judgment, the section referred to has no application to this case. It certainly cannot be so construed as to give the superior court the power to make an order extending the time within which to do an act which is required to be done in the justice’s court, and which must be done within the time limited by the statute, in order to give the superior court jurisdiction to act in the case at all. Whether the order extending time was made before or after the time when the act must be done in the justice’s court can make no difference. The superior court had no jurisdiction to extend time within which to do an act in the justice’s court while the action remained in that court, and, as we have seen, until the sureties justi
In such cases it has been held that the superior court may allow a new undertaking to be filed. (Coulter v. Stark, 7 Cal. 244; Cunningham v. Hopkins, 8 Cal. 33; Rabe v. Hamilton, 15 Cal. 31; Gray v. Superior Court, 61 Cal. 337; Coker v. Superior Court, 58 Cal. 177.) But to allow the superior court to assume jurisdiction, and make the order complained of in this case as against the plain provision of the code, that “if the sureties fail to justify within the time fixed ” it must be regarded “ as if no such undertaking had been given,” would be to override the express and unequivocal language of the statute. It is well said in Roush v. Van Hagen, 17 Cal. 122: “ It was necessary that the sureties should justify within five days after the notice of exception, and the failure to do so rendered the appeal a nullity. The statute provides that upon a failure to justify within the time limited, the appeal shall be regarded as if no undertaking had been given. The orders extending the time were in contravention of this provision, and were therefore inoperative. The statute is peremptory in its terms, and the consequence of a violation is, that the party loses the benefit of his appeal. ‘ It has been repeatedly held,’ says Sedgwick, ‘ that courts have no dispensing power, even in matters of practice, when the legislature has spoken. Thus, where a statute declares that a judge at chambers may direct a new trial, if application be made within ten days after judgment, it has been said that he can no more enlarge the time than he can legislate in any other matter. When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice. So where an appeal, to be valid, must be made
It is so ordered.
Fox, J., Paterson, J., McFarland, J., and Sharp-stein, J., concurred.
Rehearing denied.