Opinion
Civ. No. 781.
April 9, 1910.
PETITION for writ of review to the Superior Court of Los Angeles County. W. P. James, Judge.
The facts are stated in the opinion of the court.
Andrew J. Copp, Jr., for Petitioner.
James P. Clark, and Sidney J. Parsons, for Respondents.
Certiorari. Petitioner is plaintiff in an action brought in a justice's court of Los Angeles county, in which he obtained a judgment against the defendants in the action on October 11, 1909. The latter appealed to the superior court upon questions of both law and fact. Separate notices of appeal were served and filed on October 21, 1909, by two of the several defendants in the action, and on the same day the statutory undertakings on appeal and to stay execution were filed by one of the defendants; and on October 25, 1909, a separate undertaking for the same purpose by the other appealing defendants was filed. On October 27, 1909, all the papers in the cause were certified to and filed in the office of the clerk of the superior court.
No notice of the filing of these undertakings, or either of them, was given as provided by section 978a of the Code of Civil Procedure at the time they were filed, or within thirty days thereafter; and, on November 11, 1909, respondent served notice upon appellants of its intention to move to dismiss the purported appeals, which motion was noticed for November 22, 1909, and based upon the failure of appellants to serve the notices of the filing of said undertakings as aforesaid. An affidavit of counsel setting out the facts was served with the notice. Thereafter, on November 12, 1909, one of the appellants served notice upon petitioner of the filing of his undertaking. The motion to dismiss said appeals was heard at the time for which noticed and the motion denied. It is this order denying this motion which we are asked to review.
Section 978a, Code of Civil Procedure, is a new section added to the code in 1909, and reads as follows: "The undertaking on appeal must be filed within five days after the filing of the notice of appeal and notice of the filing of the undertaking must be given to the respondent. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given."
The requirement of the first sentence, to wit, the filing of the undertaking within five days after the service of the notice of appeal, and the giving of notice of the filing of the undertaking, are new provisions in the statute. Prior to the enactment of this section the undertaking could be filed at any time within the thirty days during which the appeal might be taken (sec. 978). The portion of 978a relating to the justification of sureties is but a re-enactment of the same matter theretofore a part of section 978.
It is apparent, then, that the only question presented on this application is: "Was service of notice of the filing of an undertaking by appellants necessary to give the superior court jurisdiction of the appeal?" We think this question must be answered in the negative. Statutory provisions are to be construed with reference to the intention and purpose of their enactment. The apparent evil to be remedied by the amendment of 1909 was the necessity under the old conditions that the owner of a judgment rendered in a justice's court should keep constant supervision of the justice's docket for the period of thirty days to prevent an appeal being taken therefrom without adequate security being given on the appeal. The remedy was the requirement that the undertaking be filed within five days and that notice of the filing of the undertaking should be given to him. No change was made by the amendment in regard to the time within which the respondent must except to the sufficiency of the sureties. This is still required to be done within five days after the filing of the undertaking, no reference being made to any notice of such filing. Notice of intention to file an undertaking would serve no useful purpose, as the service and filing of the notice of appeal would accomplish all that a notice of an intention to file an undertaking could do, as it implied that within five days the undertaking necessary to perfect the appeal would be filed. This is regarded as sufficient notice of intention on appeals from the superior court. No reason exists for giving a notice in advance of the act, as no hearing was to be had or act done which required the presence of the adverse party when the instrument was presented to the justice. If considered as a notice to be given after the undertaking has been filed, there is no provision as to the time it should be served or the effect of a failure to serve it. The language used in the latter part of the section with respect to the notice to be given of the time of justification of sureties cannot be read into the first sentence, as petitioner suggests. Neither is it applicable by analogy.
If the failure to give notice of the filing of the undertaking should subject appellant to a penalty, such as that prescribed where the sureties fail to justify, there would have been no question as to the legislative intention. It is true, as argued by petitioner, that the absence of such a provision makes somewhat for the view that this notice is a step in perfecting the appeal, rather than a part of the collateral proceeding to justify, but its very nature and purpose make it part of the latter. Its sole use is to bring home to respondent the knowledge that the appeal is already perfected, at least, prima facie. Only after the appeal has been taken and rendered effectual to this extent can it serve any purpose. It merely invites the respondent to inspect the undertaking already filed in order to determine the sufficiency of the sureties executing it.
The justification of the sureties after notice is not a necessary step in taking an appeal. An appeal is taken by filing and serving a notice of appeal (sec. 974); it is perfected or made effectual by filing an undertaking "for the payment of the costs on appeal." The qualification by the sureties, upon this undertaking, in the absence of exception, is a full and complete justification. A further justification may be required by the respondent by excepting to the sufficiency of the sureties. This further justification is a collateral proceeding in which the respondent may exercise a right granted him to determine the adequacy of the security given for his protection on the appeal. This he may waive, and if he fails to exercise his right to except, or fails to attend before the court when the sureties are in attendance for the purpose of justifying, the appeal remains perfected and effectual under the undertaking as originally filed, just as it does when he does not except. ( Bank of Escondido v. Superior Court, 106 Cal. 43, 47, [39 P. 211].) If, however, after exception properly made, the sureties fail to justify within five days, "the appeal must be regarded as if no such undertaking had been given." (Sec. 978a; Wood v. Superior Court, 67 Cal. 115, [7 P. 200]; McCracken v. Superior Court, 86 Cal. 76, [24 P. 845]; Bennett v. Superior Court, 113 Cal. 440, [45 P. 808]; Lane v. Superior Court, 5 Cal.App. 762, [ 91 P. 405].)
The question here under consideration was not before the court of appeal for the third district in Stimpson etc. Co. v. Superior Court, 12 Cal.App. 536, [ 107 P. 1013]. In that case there was an entire failure to file any undertaking after giving the notice of appeal, the undertaking relied on having been executed and filed "months before the trial."
In the absence of some clearly expressed intention upon the part of the legislature to make jurisdictional the serving of a notice the sole purpose of which is what we have declared this one to be, we feel constrained to hold that the failure to do so does not deprive the superior court of jurisdiction to hear an appeal in which the other steps provided by the statute are regularly and properly taken.
The demurrer to petition is sustained and the writ denied.