Certiorari. On November 11, 1915, in a certain case wherein petitioner was plaintiff and one Elizabeth G. Clarke was defendant, a judgment was rendered in the justice’s court of San Diego Township in favor of plaintiff. On November 20th defendant served upon plaintiff’s attorney a notice of appeal to the superior court, wherein it was further stated: “You will further take notice that an undertaking on said aрpeal was this day filed in said justice’s court.” This notice, together with the undertaking on appeаl, was on the same day deposited with the justice of the peace, who indorsed thereоn: “Filed November 20, 1915, J. Edward Keating, Justice of the Peace.” At the time of depositing and filing these documents the appellant did not pay the justice of the peace the fees providеd by law to be paid to the county clerk for filing the transcript on appeal and placing the action on the calendar in the superior court. *677 On December 10th, however, which was within thе time specified by law for perfecting the appeal, she did pay to the justice of the peace such fees, which were transmitted to the county clerk, together with the papers on appeal. Thereafter, upon the ground that the court was without jurisdiction to try the сase, plaintiff moved to dismiss the appeal, which motion by order of court being denied, pеtitioner by this proceeding seeks to have the same annulled.
Her contention is that no undertаking on appeal was filed within five days after the filing of the notice of appeal, as required by section 978'a of the Code of Civil Procedure. As we have stated, the notice was duly servеd on November 20th, on which day it was deposited with the justice who indorsed it as filed of that date. It is conceded that an undertaking in due form was filed within five days thereafter. Petitioner insists, however, that the filing of the undertaking was ineffectual, for the reason that the notice of appeal must be ^deemed to have been filed on December 10th, at which time the fees were paid. In the cаse of
Simmons
v.
Superior Court,
It is true that in the opinion in the case referred to this court, in response to one line of argument urged by the petitiоner therein, said: “Assuming, as claimed by petitioner, that the notice of appeal could nоt be deemed filed until payment of the fees in question was made, then, since it was left with the justice whоse duty it was to file it upon payment of the fees, it should be deemed filed as of the date on which the fees were paid.” It is clear, however, that the decision was not based upon the correctness of petitioner’s contention, but, even if well founded, the court held it insufficient to warrant the relief asked. The statement based upon the assumed correctness of petitioner’s claim was unnеcessary to the decision, which was clearly founded upon other grounds, which must be deemed conclusive as to the question involved in the instant case.
Since the notice of appeal, as held in
Simmons
v.
Superior Court,
The order sought to be annulled is affirmed.
Conrey, P. J., and James, J., concurred.