Bank of Escondido v. Superior Court of San Diego

One W. C. Smith, aggrieved at an adverse judgment of the justice’s court in an action wherein he was plaintiff and the Bank of Escondido defendant, gave notice of appeal to the superior court, and in due time fiLd the requisite undertaking. Two days thereafter one of the sureties left with the justice a written notice of withdrawal from the appeal bond, and the justice informed Smith’s attorney of the action of the surety. On February 5th, within the five days limited by law, the attorney of the bank excepted to the sufficiency of the sureties; on February 6th notice was given by Smith that the sureties would justify before the justice at 2 o’clock p. m. of February 7th. At the time appointed Smith’s attorney and the two sureties were present, as the respondent claims, and as the justice seemingly understood, for the declared purpose of justifying. The Bank of Escondido was not represented. Its attorney failed to appear, and no continuance was sought. No examination of the sureties was held. The justice declared that they were satisfactory, and that he believed them sufficient. In his docket the record of the proceedings appears as follows: “ Plaintiff, by his attorney, A. H.…