Consolidated Lumber Co. v. Superior Court

An alternative writ of prohibition was issued herein under which the respondent superior court was required to show cause why it should not be prohibited from proceeding further in a certain action entitled Consolidated Lumber Co. v. F. A. Shorey, where, after judgment in a justice’s court, the defendant appealed to the said superior court.

Within five days after the defendant Shorey had filed in the justice’s court his undertaking on appeal, the plaintiff filed in the justice’s court a notice of exception to the sureties who executed the undertaking on appeal, but did not serve upon the defendant or his attorney any notice of such exception. No justification of sureties was had, and upon that ground the plaintiff moved the superior court to dismiss the appeal. The superior court denied the motion and has set down the case upon its calendar for trial.

Section 978a of the Code of Civil Procedure, referring to undertakings on appeal from justices’ courts and the exceptions thereto, states that “the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge…