NEWMAN v. SUPERIOR COURT OF COUNTY OF LOS ANGELES (1967)

Petitioner seeks a writ of mandate commanding the Appellate Department of the Superior court for Los Angeles County to take jurisdiction and hear his appeal from the order of the Municipal Court for the South Bay Judicial District denying his motion to vacate the forfeiture of an undertaking for bail and to exonerate the undertaking.

The facts are admitted.   In July 1966 a felony complaint was filed in the municipal court charging one Nielsen with two violations of section 274, Penal Code, a felony.   A warrant was issued for Nielsen's arrest with bail set in the sum of $16,500.   On July 12 an undertaking in that amount was posted by petitioner as authorized representative of United Bonding Insurance Company.   On August 5, when defendant Nielsen failed to appear before the magistrate for preliminary examination as previously ordered, the court ordered the undertaking for bail forfeited and notice of the forfeiture was mailed.   On January 31, 1967, petitioner filed a notice of motion to vacate the forfeiture and to exonerate the undertaking.   The motion was denied on that day.   On February 1 petitioner filed his notice of appeal to the appellate department of the superior court.   On February 15, 1967, a summary judgment on the undertaking for bail was entered in the superior court against petitioner under section 1306, Penal Code.   Petitioner alleges that that judgment has been paid by the defendant Nielsen.

the register of actions of the municipal court shows that the record on petitioner's appeal was transmitted to the appellate department on February 2 and on February 9 was returned to the municipal court with the notation “not accepted.”   Petitioner alleges that on February 7 the clerk of the appellate department advised him by telephone that that court refused to take jurisdiction because it appeared that the issue involved the sum of $16,500 which is beyond the jurisdictional limits of the appellate department, and because the appeal was a civil appeal and the required filing fee had not been paid.   Petitioner admits that no filing fee was paid before the record on appeal was returned to the municipal court.

 In our opinion the refusal of the appellate department to accept jurisdiction of the appeal on the payment of the required filing fee was erroneous.

 “An order refusing to set aside forfeiture of bail is appealable.  People v. Oppenheimer, 1956, 147 Cal.App.2d Supp. 827, 305 P.2d 306;  cf. Los Angeles Surety Co., Inc. v. Municipal Court, 1931, 111 Cal.app. 133, 295 P. 591.   We conclude that such an appeal is a civil, and not a criminal, appeal.   The proceedings in People v. Bannister, 1957, 153 Cal.App.2d 480, 314 P.2d 577, and People v. Calvert, 1954, 129 Cal.App.2d 693, 277 P.2d 834, seem to support such an inference by reason of the fact that each bears a civil number.   When forfeiture has been decreed, a civil judgment is entered, upon which execution is authorized.  Pen.Code, § 1306.”  (People v. doe, 172 Cal.App.2d Supp. 812, 814–815, 342 P.2d 533.)^*

 As amended in 1961, section 77, subdivision (g), Code of Civil Procedure, provides that every appellate department of a superior court established “under this section shall have jurisdiction on appeal from the municipal and justice courts within the county or city and county in all cases in which an appeal may be taken to the superior court as is now or may hereafter be provided by law, except such appeals as require a retrial in the superior court.”   Neither the statute nor any case which has come to our attention suggests that the jurisdiction of the appellate department on an appeal from an order or judgment of a municipal court is limited by the amount of money involved in the order or judgment appealed from.   Where, as here, the order of the municipal court is an appealable order the appellate department must accept the appeal if the proper filing fee is paid.   Since no retrial is required, its jurisdiction is similar to that of any appellate court.  (Cf. Unemployment, etc., Comm. v. St. Francis, etc., Assn., 58 Cal.App.2d 271, 275, 137 P.2d 64;  Thomasian v. Superior Court, 122 Cal.App.2d 322, 331, 265 P.2d 165.)

 Respondent concedes that the judge of the municipal court sitting as a magistrate in this case had power to set the amount of bail in excess of the monetary jurisdictional limits of the municipal court in civil matters, and that an order to forfeit the undertaking was proper when the defendant did not appear before the magistrate for the preliminary hearing on the felony complaint.   It is contended, however, that in ordering forfeiture of the undertaking the judge of the municipal court was acting only in his capacity as a magistrate and not in his capacity as a judge of the municipal court, and that the appellate department does not have appellate jurisdiction over orders of committing magistrate.   This contention is not tenable.

 By statutory definition a judge of a municipal court is a magistrate.  (Pen. code § 808.)   Judge of a municipal court “when sitting as magistrates, have the jurisdiction and powers conferred by law upon magistrates, and not those which pertain to their respective judicial offices.   They derive their powers and jurisdiction from the constitution, operating with the acts of the legislature upon the subject.”  (People v. Crespi, 115 Cal. 50, 54, 46 P. 863;  County of Tulare v. Fenn, 47 Cal.App. 413, 415, 190 P. 855.)

By statute, a magistrate has “power to issue a warrant for the arrest of a person charged with a public offense” (Pen.Code § 807), to admit defendant to bail for “his appearance before the magistrate, on the examination of the charge, before being held to answer” (Pen.Code § 1273);  and to conduct a preliminary hearing in a felony case and bind the defendant over to answer in the superior court (Pen.Code § 858 et seq.).

 It seems clear, that a magistrate has no statutory power to declare an undertaking for bail forfeited or to enter judgment on the undertaking.   Those powers are expressly conferred upon the court as istinguished from the magistrate by sections 1305 and 1306 of the Penal Code.   Under section 1306 it is the court and not the magistrate which has the power to discharge the undertaking or to set aside the forfeiture.   The appeal here is from the order of the court denying petitioner's motion to vacate the forfeiture and discharge the undertaking.   Under section 77, subdivision (g), Code of Civil Procedure, the appellate department of the superior court has jurisdiction of that appeal.

 As we have noted above, when the record on appeal was lodged with the appellate department, petitioner was advised informally that that court would not accept the appeal, not only because the required filing fee had not been paid, but primarily because the appellate department did not have jurisdiction to entertain the appeal.   In these circumstances, it would have been an idle act for petitioner to have tendered the required filling fee at that time before petitioning this court for relief.

Let a peremptory writ of mandate issue requiring the Appellate Department of the Superior court for the County of Los Angeles to accept, hear and determine petitioner's appeal from the order of the Municipal court for the South Bay Judicial District entered upon its minutes January 31, 1967, and to make such orders as are necessary to cause record of said appeal to be filed with said appellate department within 15 days after the judgment herein becomes final, on condition that petitioner shall pay the required filing fee within 10 days after notice from said appellate department that it is in receipt of said record on appeal.

FOOTNOTES

FOOTNOTE.  

FOOTNOTE.   In People v. Oppenheimer, 147 Cal.App.2d supp. 827, p. 830, 305 P.2d 306, p. 308, the court said:  “An appeal will lie from an order refusing to set aside the forfeiture.  People v. Calvert, 1954, 129 Cal.App.2d 693, 277 P.2d 834;  People v. Niccoli, 1951, 102 Cal.App.2d 814, 228 P.2d 827;  People v. Kersten, 1943, 60 Cal.App.2d 624, 141 P.2d 512.”

McCOY, Associate Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

FORD, P.J., and MOSS, J., concur.