Budd

By this proceeding it is sought to have a writ issued prohibiting the superior court from taking further action in a certain cause entitled Harold Budd, Plaintiff, v. M. F. Schmitt, Defendant, other than to dismiss the appeal taken by the defendant to said superior court from a judgment entered in the justice’s court of Los Angeles township.

Petitioner was awarded a judgment against Schmitt in the justice’s court in April, 1910. Schmitt in due time gave notice of appeal and filed the necessary undertaking, which was furnished by a surety company. On May 16, 1910, petitioner served on the attorneys for Schmitt a notice, excepting to the sufficiency of the surety company as surety on the undertaking on appeal. This notice of the exception was not filed with the justice until May 18, 1910. On May 17th, however, counsel for Schmitt gave notice to the attorney for Budd that the surety would justify on May 18, 1910, at 9:30 o’clock A. M., before the justice. At the time the last-mentioned notice was served, Budd’s counsel announced that he would not accept service thereof and would not be present in court on the following day. When the ease reached the superior court a motion was made…