Blake

This is a proceeding in mandamus against the superior court of Santa Clara county.

On January 31, 1911, the petitioner commenced an action in the justice’s court of San Jose township against Eugenia M. Salisbury, and after appearance by defendant the case was regularly tried and judgment was entered for defendant. Subsequently and within thirty days from the date of the judgment, to wit, on March 14th, petitioner herein served and filed a notice of- appeal, and executed and filed an undertaking on appeal in proper form and amount, but he did not serve upon Eugenia M. Salisbury or her counsel any notice of the filing of said undertaking. Later the papers in the cause were transmitted to the superior court of Santa Clara county, and in the month of May said court granted a motion theretofore made to dismiss the appeal on the ground that no notice of the filing of the undertaking was given as aforesaid, basing its ruling on section 978a of the Code of Civil Procedure.

The correctness of that ruling is the main question we are called upon to decide in this proceeding.

Respondent contends that under the terms of said section notice of the filing of the undertaking is an integral…