Dutertre

This is an application for a writ of prohibition directed to the Hon. F. W. Lawler, judge of the superior court, prohibiting him from hearing the *536 action of Dutertre v. Calvert, on appeal to the superior court from the justice’s court. The grounds upon which it is claimed that the superior court has no jurisdiction to hear the appeal in that ease are, that judgment was entered in favor of the plaintiff therein in the justice’s court on August 12, 1889; that an undertaking on appeal was filed in the office of the clerk of said justice’s court on said August 12th, but the notice of appeal was not filed until August 19, 1889, and was not served on the plaintiff therein until August 23, 1889; and that no notice of the filing of the undertaking was given plaintiff. It is claimed that because the undertaking was filed more than five days before service of a notice of appeal, and no notice of the filing of the undertaking given, the plaintiff lost the benefit of the statutory time to except to the sureties, and that the appeal was ineffectual for any purpose; that, to render the appeal effectual, an undertaking must be filed after service of the notice, or at least that notice of the…