Opinion
Application for a writ of prohibition.
COUNSEL:
John J. Coffey, and W. H. Thompkins, for Petitioner.
P. J. Van Loben Sels, for Respondents.
JUDGES: In Bank. Morrison, C. J. McKee, J., McKinstry, J., Ross, J., Sharpstein, J., Myrick, J., and Thornton, J., concurred.
OPINION
MORRISON, Judge
This is a petition for a writ of prohibition to prevent the respondent from trying a certain cause pending in his court. The facts upon which the petitioner relies may be briefly stated as follows: The petitioner recovered a judgment in a Justice's Court in the city of San Francisco, against one John F. Revalk in the sum of $ 50 and $ 33.50 costs, on the 22d day of September, 1884. On the 29th day of the same month, a notice of appeal and an undertaking in due form were filed in said action. On the 2d day of October a notice of exception to appellant's sureties was duly given and filed, and on the 4th day of October a notice of justification of the sureties on the appeal was duly given, but the sureties failed to appear and justify according to law; but on the 7th day of October the defendant deposited in the Justice's Court the sum of $ 100, a sum equal to double the amount of the judgment, and the further sum of $ 83.50 in gold coin in lieu of an undertaking on appeal.
It is claimed by the petitioner that there is no law authorizing such a deposit; but in this counsel is mistaken, as there is a section of the Code authorizing such deposit in the place of an undertaking. Section 978 of the Code of Civil Procedure provides that a deposit of the amount of the judgment including costs with the justice or judge is equivalent to the filing of the undertaking, and in such case the justice or judge must transmit the money to the clerk of the Superior Court to be by him paid out on the order of the court. When the money was deposited in the Justice's Court it should have been transmitted to the clerk of the Superior Court, as a security on appeal, and it took the place of an undertaking. But pending the appeal the money was withdrawn by the appellant and an undertaking filed in lieu thereof. This undertaking was filed after the time allowed by the statute for filing thereof, and, in our opinion, was filed without any law authorizing it. It is true it was done by an order of the court, but the court had no power to make an order which in effect extended the time for filing an undertaking on appeal beyond the thirty days fixed by the Code. The undertaking thus filed may be left out of the case; and we find an attempted appeal without any security [7 P. 122] for judgment or costs. It was the voluntary act of the appellant in withdrawing the deposit and we think he thereby abandoned his appeal.
It follows, from the foregoing reasoning, that there was no appeal pending in the Superior Court, after the withdrawal of the deposit, and no case for that court to try. It was therefore without jurisdiction in the case, and the motion to dismiss the appeal should have been granted. The order made on the 7th day of March, 1885, in response to said motion to dismiss, allowing the appellant to file another undertaking on appeal, was without authority of law and void.
Writ ordered as prayed for.