Opinion
Application for writ of certiorari.
SYLLABUS
APPEAL FROM JUSTICE'S COURT -- HOW PERFECTED.
The superior court obtains jurisdiction of an appeal from a justice's court, where the notice of appeal is served and filed, and the undertaking on appeal filed within the statutory time, and the appeal cannot then be dismissed for want of jurisdiction; and the fact that the acts necessary to the perfection of the appeal were not done in the order prescribed in the statute is immaterial, if they are all done within the prescribed time.
Geo. C. Blanchard and Chas. A. Swisler, for petitioner.
Irwin & Irwin, for respondent.
In bank.
OPINION
MORRISON, C. J.
Application for a writ of certiorari. The petition in this case sets forth that on the fourteenth day of June, 1884, one William Went recovered a judgment against petitioner in a justice's court, in the county of El Dorado, for a sum of money therein stated; that on the twenty-third day of June a notice of appeal in said case was served and filed on the following day, and on the twenty-eighth of June, 1884, a bond on appeal was duly filed. The petition alleges that the appeal was in all respects regular and according to law, but that on the eleventh day of February, 1885, the cause was brought on for hearing before the superior court of El Dorado county, when a motion was made to dismiss the appeal, which was granted on the grounds, as the order of dismissal shows, "that the notice of appeal was served on the twenty-third day of June, 1884, and filed on the 24th; that the bond was filed on the 28th." 7 There is no doubt that the reasons assigned by the court for making the order of dismissal were wholly insufficient. The notice of appeal was given in time, was filed in time, and so was the bond filed within the time fixed by law. All of these questions were before the court and decided in the case of Coker v. Superior Court of Colusa Co. 58 Cal. 177. It was there held that
"To effectuate an appeal from the judgment of a justice of the peace, three things are necessary, viz.: The filling of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all these must be done within thirty days after the rendition of the judgment. Sections 974, 978, Code Civil Proc."
Here the notice of appeal was served and filed, and the undertaking on appeal was filed, within the time prescribed by the statute, but not in the order named in the statute. The mere order in which the acts are done is not material; but when done within the time limited, the appeal is perfected. Coker v. Superior Court, supra.
The Coker Case is very much in point, and settles the question that the appeal was improperly dismissed on the grounds stated in the order of dismissal.
We have shown that the appeal was regularly taken according to the provisions of the Code, and the case was therefore properly in the superior court for trial. Had that court the right to dispose of the appeal in the summary manner in which it did, or was it not the duty of the court, under the circumstances, to dispose of the case on its merits? This court said, in the case of Levy v. Superior Court of Yolo Co. 5 P. 353,
"That court [the superior court] can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient."
Neither could the superior court in the case now before us divest itself of the jurisdiction properly vested in it by the appeal by an arbitrary order dismissing the appeal in the manner complained of.
The order of the court below dismissing the appeal is hereby annulled, and the cause remanded to the court below to proceed in the same according to the principles contained in this opinion.
We concur: MYRICK, J.; McKEE, J.; THORNTON, J.