Opinion
Appeal from the County Court of the County of San Joaquin.
The action was a petition for a mandamus to compel the defendant, a Justice of the Peace, to certify an appeal taken from a judgment rendered by him against the plaintiff, and to stay execution thereupon.
The defendant requested the Court to frame the following issue for submission to the jury: " Did the plaintiff, within thirty days from the rendition of judgment against him by said Justice tender to said Justice, or to any one authorized by him to receive them, his legal fees to file appeal bond, and to transmit the papers used in the cause tried in said Court, to the County Court." The Court submitted the issue as framed, and plaintiff excepted. The jury found that plaintiff did not, within the time prescribed, tender any fees to said Justice to file his appeal bond, or for any other purpose. Whereupon the Court gave judgment for defendants, and overruled a motion for a new trial.
Plaintiff appealed.
COUNSEL:
Baine & Bouldin, for Appellants.
S. W. Brockway, for Respondent.
No briefs on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
One of the conditions upon which an appeal is allowed from a Justice of the Peace, is the payment of the costs of the action. See Practice Act, sec. 627.
If Justice sends up the papers without demanding his fees, their non-payment is no ground for a motion to dismiss appeal. Bray v. Redman , 6 Cal. 287.