Summary
In Gray v. Amador County, 61 Cal. 337, the supreme court approved of the action of the superior court in permitting the appellant to file another undertaking in lieu of an undertaking insufficient in form filed in the justice court from which the appeal was taken.
Summary of this case from Cohen v. ConnickOpinion
Department One
Application for writ of prohibition.
COUNSEL
Gray & Hall, for Petitioner.
John W. Armstrong, for Respondent.
OPINION
The Court:
An instrument purporting to be an undertaking in the sum of more than one hundred dollars was filed in the Justice's Court with the notice of appeal for the payment of costs on appeal. In McConky v. The Superior Court , 55 Cal. 84, no undertaking for costs on appeal had been filed either in the Justice's or Superior Court; nevertheless, the latter Court was proceeding to hear the appeal. Prohibition issued, this Court saying: " Whether a proper undertaking for the payment of costs on appeal may be substituted in the Superior Court for one insufficient in form filed with the Justice, is not a question which the exigencies of this case demand of us to decide." (56 Cal. 84.) In the case now before us the Superior Court permitted the appellant to file an undertaking in lieu of the undertaking insufficient in form. It was held by the Supreme Court of this State prior to the passage of the Act in terms authorizing the substitution (Stats. 1861, p. 589), that an appellant might file a new undertaking in place of one held insufficient in the Appellate Court. (Stark v. Barrett , 15 Cal. 360.) And this under a statute like Section 978 of the Code of Civil Procedure. (Practice Act of 1851, § 348.)
With respect to a question of practice, like that here presented, we do not feel authorized, at this late day, to disturb a ruling intended to assist parties to a hearing in the appellate Court. The action of the Superior Court with reference to the justification of sureties was clearly within its jurisdiction.
Demurrer sustained and proceeding dismissed.