Farrisee

Certiorari. The question presented is the power of the superior court to proceed with the trial of an action pending therein on appeal from a judgment rendered by a justice’s" court, after denying, a motion to dismiss the same made upon the ground that the superior court is without jurisdiction to try the case, for the reason that the sureties upon the undertaking failed to qualify within five days after exceptions interposed to their sufficiency, and that a second notice of appeal and undertaking thereon, filed before the expiration of the time within which the sureties might have qualified and while the first appeal was operative, was a nullity.

[1] An appeal from a justice’s court is taken by filing a notice thereof with the justice and serving a copy thereof upon the adverse party (Code Civ. Proc., sec. 974), but it “is not effectual for any purpose, unless an undertaking be filed’* (Code Civ. Proc., sec. 978). This implies that it is effectual if the undertaking required be filed. [2] Appellant, in giving the notice and filing the undertaking, having fully complied with the provisions of the code, the justice was divested of all jurisdiction in the matter other than, as…