Dutertre v. Superior Court of San Francisco

Paterson, J. This is an application for a writ of prohibition directed to the Hon. F. W. Lawler, judge of the superior court, prohibiting him from hearing the [536] action of Dutertre v. Calvert, on appeal to the superior court from the justice’s court. The grounds upon which it is claimed that the superior court has no jurisdiction to hear the appeal in that ease are, that judgment was entered in favor of the plaintiff therein in the justice’s court on August 12, 1889; that an undertaking on appeal was filed in the office of the clerk of said justice’s court on said August 12th, but the notice of appeal was not filed until August 19, 1889, and was not served on the plaintiff therein until August 23, 1889; and that no notice of the filing of the undertaking was given plaintiff. It is claimed that because the undertaking was filed more than five days before service of a notice of appeal, and no notice of the filing of the undertaking given, the plaintiff lost the benefit of the statutory time to except to the sureties, and that the appeal was ineffectual for any purpose; that, to render the appeal effectual, an undertaking must be filed after service of the notice, or at least that notice of the filing of the undertaking must be given in some form. In Coker v. Superior Court, 58 Cal. 177, it was held that the notice of appeal must be filed and served and an undertaking given within thirty days after the rendition of the judgment, to render the appeal effectual, but that the order in which they were done is not material. In that case the judgment was rendered June 12th, notice of appeal served June 16th, and filed June 17th, but the undertaking on appeal was not filed until July 7th, and yet it was held that jurisdictional prerequisites had been complied with. In the case before us, the plaintiff had no notice that the defendant in the action (in the justice’s court) would appeal to the superior court until eleven days after the defendant therein had filed an undertaking. The petitioner herein claims that he was entitled to the benefit of the statutory time of five days after notice of the filing of the undertaking to except to the sufficiency of the [537] sureties therein. In this we think he is right. As this court said in Columbet v. Pacheco, 46 Cal. 651, referring to provisions of a similar nature, “it would be unreasonable to hold that this period of time may run against the respondent without his having had notice in some mode that the undertaking had been actually filed in the clerk’s office, and the code having failed to provide for a special notice of that fact, we think it was intended that the service of the notice of appeal should itself operate such notice.” But the petitioner did have an opportunity to except to the sufficiency of the sureties. The notice of appeal was notice to him that an undertaking had been or would be filed within the thirty days after the rendition of the judgment. It was not necessary for the appellant to give a new undertaking. The statute gives the appellant the right to file and serve his notice of appeal and his undertaking at any time within the thirty days; and, as we have seen, the order in which these jurisdictional steps are taken is immaterial. Application denied. Fox, J., Beatty, C. J., Works, J., Sharpstein, J., and McFarland, J., concurred. Rehearing denied.