The Miller Co., Inc. v. Superior Court

Petitioner is plaintiff in an action pending before respondent superior court. That action originated in the justice court and was tried there, with the result that judgment went in favor of petitioner. The defendant in the action prosecuted an appeal to respondent superior court and .petitioner made a motion to dismiss the appeal, the motion 'being denied. Petitioner contends that the motion should have been granted, and by its petition seeks to prohibit respondents from taking further proceedings in the action. Upon the filing of the petition an alternative writ of prohibition was issued and the matter is now before us upon the question whether a peremptory writ shall go forth. Respondents have interposed a general demurrer to the petition and the question is, therefore, to be settled upon the face of the latter pleading.

The petition alleges that in due time after the filing of his notice of appeal and undertaking on appeal by the defendant in the action mentioned petitioner served and filed a notice that it excepted to the sureties on the undertaking and required them to justify. It is averred that this notice was filed June 15, 1921. The next allegation is that the defendant…