Bardwell

A judgment was awarded in a justice’s court against the defendant there, who took all of the required steps to appeal. Notice was given her that the sureties on her appeal bond should appear and justify, but they did not do so within the required time. Thereafter and within the statutory time for appeal the said defendant filed a new notice of appeal and a new undertaking on appeal and caused a new notice thereof to be served on plain tiff, but paid no additional fee. The justice thereafter transmitted the case papers to the superior court and the plaintiff duly moved therein to dismiss the latter appeal. The motion was denied. The plaintiff in the justice’s court now prays that we issue our writ of mandate commanding the superior court to dismiss the appeal, and for such further relief as she may be entitled to. Respondents appear by demurrer, alleging that the petition does not state a cause of action for the issuance of the writ of mandate or a cause of action against it.

The cause was argued herein upon the understanding that the demurrer should be taken as an answer.

We have examined all of the many cases cited by the parties, and while none of them arose from exactly the…

I concur. The case of McCracken v. Superior Court, supra,' seems more in accord with the language of section 978, Code of Civil Procedure, but under the later case of Moffat v. Greenwalt, supra, the failure to justify after a timely exception does not seem to make the appeal ineffectual for any purpose, as the code seems to say, without an order of the superior court dismissing it.