Tompkins

Prohibition. Upon application therefor, an alternative writ was issued herein directed to the superior court of San Bernardino County, commanding it to appear and show cause why it should not be prohibited from proceeding with the trial of a certain cause pending therein, wherein the petitioner as plaintiff had, in the justice’s court, obtained a judgment against one Charles C. Smithson, from which judgment said Smithson had appealed to said superior court.

In response to the writ a return was made, from which and the petition it appears that the judgment of the justice was rendered on March 28, 1914; that on April 1st following Smithson appealed therefrom to the superior court, but neglected to perfect the appeal by giving the undertaking required by section 978 of the Code of Civil Procedure. Notwithstanding such neglect, the justice duly certified and transmitted to the superior court the record in the cause. A demurrer to the complaint was, on April 3d, interposed by Smithson, and by the court overruled on April 13tli, and the case set for trial on May 15th. Thereafter, on April 15th, within the time allowed him for appealing in said cause, Smithson filed another notice of…