Carpenter v. Superior Court

C. W. CARPENTER, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY et al., Respondents.

COUNSEL

Edward J. Dole for Petitioner.

Theodore T. Daniels for Respondents.

OPINION

Nourse, P. J.

Petitioner seeks a review of the proceedings of the superior court leading to a judgment against him on an undertaking given on an appeal from the small claims court. In a trial before the latter court a judgment was entered against the defendant named therein; he filed a notice of appeal to the superior court and an undertaking executed by this petitioner alone. The superior court affirmed the judgment and then gave judgment against this petitioner on the bond.

[1] This undertaking did not meet the terms of section 117 (1) of the Code of Civil Procedure in several respects but particularly in that it was executed by but one surety. Since the undertaking was not executed by "two or more sureties" the appeal was "not effectual for any purpose". (Sec. 978, Code Civ. Proc.) The superior court, therefore, had jurisdiction to dismiss the appeal but not to affirm the judgment. [2] The surety did not undertake to pay upon dismissal, as required by the code section, hence, there was no jurisdiction to enter a judgment on the undertaking following the affirmance of the judgment.

The judgment against this petitioner is annulled.

Sturtevant, J., and Spence, J., concurred.