San Francisco-Oakland Terminal Railways v. Superior Court

This is an original proceeding in mandate to require the superior court to set aside its order dismissing petitioner’s appeal from a judgment adverse to it rendered in the justice’s court in an action entitled Rinke v. San Francisco-Oakland Terminal Rys. etc., and to direct the lower court to proceed with the trial of the action. The petition as first filed was designated as one in certiorari. A demurrer was interposed upon the ground that mandamus and not certiorari was the proper remedy. This demurrer was sustained on the authority of Golden Gate Tile Co. v. Superior Court, 159 Cal. 474 , [ 114 Pac. 978 ] and Widrin v. Superior Court, 17 Cal. App. 93 , [ 118 Pac. 550 ], An alternative writ of mandate was ordered issued on the authority .of the case first cited and upon the return day respondent rested upon its general demurrer which put in issue the question whether the superior court had properly dismissed the appeal because,, the surety had not justified in the manner prescribed by law. The argument of respondent is that the provisions of section 1057a of the Code of Civil Procedure, relating to the justification of corporate surety upon a bond on appeal from a judgment…