The petitioners seek to prohibit the trial in the superior court of Sonoma County of a certain action, entitled F. R. Shriver and G. Schoff (a Copartnership), Plaintiffs, v. Floyd Colvin and A. Beeman, Defendants, and which, prior to the filing of the petition in this court, had been set for trial by respondents. To the petition so filed, respondents have interposed a demurrer and answer. The demurrer was submitted without argument, and in view of the conclusions we have come to in a discussion of the facts as disclosed by the petition and answer, upon which this proceeding has been submitted, we believe the demurrer should be overruled, and it is so ordered.
It appears from the pleadings herein that the action above referred to was commenced in the justice’s court of Santa Rosa township, county of Sonoma, and subsequently (according to the averments of the petition, upon the stipulation of the parties) was transferred to the justice’s court of Russian River township, in said county. The action was
It will be noted that the second notice of appeal and the undertaking thereon were not only filed with the justice before the expiration of thirty days from December 30, 1919, the date of the purported judgment from which the appeal was taken, but were also transmitted to the clerk of the superior court and filed by him within said time and before the order dismissing the first appeal.
[1] It is important at the outset to determine whether or not the appeal first taken was perfected by the giving of a proper and sufficient undertaking. If it was, then there was no authority to file the second notice of appeal or undertaking, for upon the perfecting of an appeal the jurisdiction of the superior court immediately attaches. (Farrisee v. Superior Court, 40 Cal, App. 469, [181 Pac. 73].) If not perfected, then jurisdiction remained in the justice’s court. The document filed as an undertaking was not signed by any sureties. According to the answer filed herein, two persons did sign the affidavit of qualification attached to the form of. undertaking. "We think this is clearly insufficient to constitute an undertaking, for parties who merely sign such an affidavit are not bound, nor do they become liable for the payment of any sum for costs on appeal, or otherwise.
An undertaking fatally defective is insufficient to confer jurisdiction upon an appellate court. (Coker v. Superior Court, 58 Cal. 177; McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845].) Of course, the rule is different where the undertaking is not fatally defective. (Werner v. Superior Court, 161 Cal. 209, [118 Pac. 709].)
[2] The undertaking is not only fatally defective, but not having been signed is, in legal effect, no undertaking. The appeal was a mere nullity; hence the record was improperly transmitted to the superior court. Under such circumstances the case is to be deemed as in the justice’s court. In the case of Tompkins v. Superior Court, 24 Cal. App. 656, [142 Pac. 96], notice of appeal from a judgment was given, but no undertaking was filed thereon. Ther papers were, how
The transferring of the papers under the first notice of appeal being unwarranted, it follows that the fees paid for the purpose of perfecting the appeal must be deemed to have remained in the hands of the justice until an appeal had been properly perfected. The sum so paid, under the provisions of sections 977 and 981 of said code, is to be transmitted with the papers.
Petitioners cite Farrisee v. Superior Court, 40 Cal. App. 469, [181 Pac. 73], but that case is distinguishable from this, as an undertaking had been duly filed, but the sureties, upon exception being taken to their sufficiency, had failed to qualify. The court held upon notice of appeal being filed, together with a sufficient undertaking the appeal became effectual and the jurisdiction of the superior court attached; that the failure of the sureties to justify did not ipso facto affect the appeal,'but should be construed “as giving the respondent the right, if he shall choose to avail himself thereof, to move for its dismissal upon the ground that
That an undertaking to pay costs on appeal must be first-filed before jurisdiction is conferred, and if not so filed the appeal is ineffectual for any purpose, -has been held in many cases, but particular attention is called to the cases of Stimpson etc. Scale Co. v. Superior Court, 12 Cal. App. 536, [107 Pac. 1013]; Thomas v. Hawkins, 12 Cal. App. 327, [107 Pac. 578]; McCracken v. Superior Court, 86 Cal. 74, [24 Pac. 845],
[3] The question as to the time of the payment of the fees under section 981 of the Code of Civil Procedure was involved in the case of Simmons v. Superior Court, 30 Cal. App. 252, [157 Pac. 817], and therein it is held that if the fees are paid within the thirty days allowed for taking an appeal, so as to enable the same to be transmitted with the record on appeal, although not paid at the time of filing the notice of appeal, it is sufficient. The court is careful to note that it does not intend to hold that the justice would be required to accept for filing any notice of appeal not accompanied with the payment of the fees. To the same effect is the case of Simmons v. Superior Court, 37 Cal. App. 676, [174 Pac. 670], The Simmons case, 30 Cal. App. 252, [157 Pac. 817], is distinguished by the court therein from the case of Johnson v. Superior Court, 28 Cal. App. 618, [153 Pac. 404], for the reason that in the Johnson ease the fees were not paid until after the expiration of thirty days, and hence the appeal had not been perfected within that time. Austin v. Strang, 30 Cal. App. 265, [157 Pac. 1002], cited by petitioner, is not in point, as that was mandate to compel the justice to enter a default without paying his fees therefor.
As no appeal .had been perfected under the first notice of appeal by reason of the failure to file an undertaking thereon as required by law, jurisdiction of the action remained in the justice’s court, and hence the papers and fees were prematurely transmitted. The second notice of appeal was taken within the time allowed by law (and after the time allowed by law for the filing of a new undertaking under the first notice) and a valid undertaking was filed. Hence this appeal became effectual (the fees for the transmission of the papers on appeal having been previously paid to the
2. The second ground stated is that the papers were irregularly and improperly filed in said appeal. Apparently, from the points and authorities of petitioners, the irregularity consisted in the clerk of the superior court having filed the papers on the second appeal among the papers on the first appeal. The answer to this is as stated above: The transmission of the record on the first appeal having been unwarranted, the papers thus transmitted should be refiled as accompanying the second appeal. (Tompkins v. Superior Court, 24 Cal. App. 656-658, [142 Pac. 96].)
As the above points were the only ones argued by counsel, we -have discussed the same at some length, for under the circumstances, we did not desire to disregard them; however, in view of the conclusion to which we have come as to the third ground stated in the notice of motion, a discussion of those points might have been properly eliminated.
3. The third ground is that the court is without jurisdiction of said appeal.
[4] This is well taken, for no judgment has ever been made or entered by the justice’s court in said action. It is true that counsel have not discussed this particular point, and doubtless did not call the same to the attention of respondents at the hearing of the notice of motion to dismiss. It has apparently been assumed by counsel that a judgment was entered on December 30, 1919, but that such is not the fact is disclosed by the record.
While the notice of appeal (a copy of which is attached to the petition) recites that it is taken from the judgment made and entered on December 30, 1919, as a matter of fact, no such judgment was entered. The failure of counsel to call the court’s attention to this matter would not, of course, justify a refusal to issue the writ, where the record, as it
The case was tried on December 30, 1919, before the court and a jury, and the docket, a copy of which is attached to the petition, contains the following entry:
“December 30th, 1919. All parties in court. Jury sworn to try the case. The jury after hearing all evidence returned a verdict in favor of plaintiffs.
“Verdict as follows:
Seven lambs at eight dollars...........$50.06,*
One ewe at ten dollars................ 10.00
Two ewes at four dollars.............. 8.00
Total.........................$74.00 and costs.”
At the end of the transcript of docket is the following: “I hereby certify above is true copy of the docket kept by me. J. D. Cooper.” Nowhere in the docket is there mention of any judgment entered on the verdict of the jury.
As no judgment has ever been entered, it follows that both attempted appeals were prematurely taken and the superior court acquired no jurisdiction thereby. In the case of June v. Superior Court of Sonoma County, 16 Cal. App. 126, [116 Pac. 293], an appeal had been taken from the justice’s court to the superior court after the entry of the verdict of the jury in the docket, but no judgment had been entered. The superior court made its order dismissing the appeal. It was sought by proceeding in mandate to compel the court to set aside its order dismissing the appeal. After reviewing the various decisions and sections of the code applicable thereto, it was held that the appeal was prematurely taken and that the superior court did not acquire jurisdiction thereby. The court say: “We do not think that the justice must formulate a judgment with that particularity required of judgments required to be entered in the superior court, but that he should make some entry in his docket showing that he has rendered judgment on the verdict we do think is essential to a substantial compliance with the statute. His duty to enter judgment is in a sense ministerial, and its performance could probably be enforced by mandate, but, nevertheless, the statute requires this of
From the foregoing it follows that a peremptory writ of prohibition should issue out of this court directed to respondents commanding them to refrain from all further proceedings in the action of F. R. Shriver and G. Schoof, a Copartnership, v. Floyd Colvin and A. Beeman, except to enter an order dismissing the appeal attempted to be taken therein. Let the writ issue accordingly. .
Burnett, J., and Hart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on August 19, 1920, and the following opinion then rendered thereon:
*.
The error in this item appears in the copy of the docket from which we have quoted.