Werner v. Superior Court of S.F.

California Supreme Court

Werner v. Superior Court of S.F.

118 P. 709, 161 Cal. 209, 1911 Cal. LEXIS 416

CourtCalifornia Supreme Court

DecidedOctober 17, 1911

DocketS.F. No. 5798.

StatusPublished

Cited by4 cases

This text of 118 P. 709 (Werner v. Superior Court of S.F.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Werner v. Superior Court of S.F., 118 P. 709, 161 Cal. 209, 1911 Cal. LEXIS 416 (Cal. 1911).

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Opinion

THE COURT.

This is a petition for a writ of prohibition to restrain the superior court from proceeding with the hearing and determination of a case appealed to it from the justice’s court upon the ground that the superior court had never acquired jurisdiction of the cause upon appeal.

In support of his application petitioner contends that the undertaking given on appeal is so radically defective as to be a nullity, wherefore the superior court never acquired jurisdiction (McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845]). The defect in the undertaking which it is contended thus completely destroys it is this: The instrument *210 provides that the sureties will pay all costs and damages awarded against “the defendant,” whereas the plaintiff being the appellant it should have read “plaintiff” or “appellant.” That this palpable error is not sufficient to vitiate the undertaking and render it a nullity is decided in Swain v. Graves, 8 Cal. 549, under facts and circumstances well nigh identical with those here presented. It follows, therefore, that the error rendered the undertaking merely defective and not a nullity.

Under section 90 of the Code of Civil Procedure, the ease in the justice’s court was assigned for trial to Justice A. B. Treadwell. Subsequently the sureties justified before Justice Isadore Golden, another justice of the same justice’s court. This was after due notice to the defendant. It is contended that this justification was a nullity, but section 92 of the same code expressly provides that “sureties on appeal, or on any bond, or undertaking given in any cause or proceeding in said court, when required to justify, may justify before any one of the justices.” The justification, therefore, was not a nullity.

It is made to appear that a corrected undertaking, by leave of the court first had, was filed in the superior court before which the appeal was pending. This was permissible procedure and cured the error complained of (Coulter v. Stark, 7 Cal. 245; McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845]).

Wherefore, the relief prayed for is denied and the writ discharged.

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THE COURT.

This is a petition for a writ of prohibition to restrain the superior court from proceeding with the hearing and determination of a case appealed to it from the justice’s court upon the ground that the superior court had never acquired jurisdiction of the cause upon appeal.

In support of his application petitioner contends that the undertaking given on appeal is so radically defective as to be a nullity, wherefore the superior court never acquired jurisdiction (McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845]). The defect in the undertaking which it is contended thus completely destroys it is this: The instrument *210 provides that the sureties will pay all costs and damages awarded against “the defendant,” whereas the plaintiff being the appellant it should have read “plaintiff” or “appellant.” That this palpable error is not sufficient to vitiate the undertaking and render it a nullity is decided in Swain v. Graves, 8 Cal. 549, under facts and circumstances well nigh identical with those here presented. It follows, therefore, that the error rendered the undertaking merely defective and not a nullity.

Under section 90 of the Code of Civil Procedure, the ease in the justice’s court was assigned for trial to Justice A. B. Treadwell. Subsequently the sureties justified before Justice Isadore Golden, another justice of the same justice’s court. This was after due notice to the defendant. It is contended that this justification was a nullity, but section 92 of the same code expressly provides that “sureties on appeal, or on any bond, or undertaking given in any cause or proceeding in said court, when required to justify, may justify before any one of the justices.” The justification, therefore, was not a nullity.

It is made to appear that a corrected undertaking, by leave of the court first had, was filed in the superior court before which the appeal was pending. This was permissible procedure and cured the error complained of (Coulter v. Stark, 7 Cal. 245; McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845]).

Wherefore, the relief prayed for is denied and the writ discharged.

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Bluebook (online)

118 P. 709, 161 Cal. 209, 1911 Cal. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/werner-v-superior-court-of-sf-cal-1911.

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