Nelson v. Superior Court

YORK, J.

Petitioners seek by

mandamus

proceedings to compel the respondent court to set aside an order dismissing appeals and to proceed with trials

de novo

in said court.

It appears from the petition for writ of mandate that on April 30, 1935, at a time when there was pending in the Justice’s Court of Santa Monica Township an action entitled

Jack L. Horn, Plaintiff,

v.

Anna K. Beardsley, Defendant,

the plaintiff therein caused an attachment to be levied upon certain personal property then in possession of the defendant; that petitioners filed a third party claim to said property, petitioner Chickenoff by virtue of a chattel mortgage thereon, and petitioner Nelson, as vendor in a conditional sales contract. Hearing to determine the title to said property was had on May 16, 1935, and on May 21st default judgment was entered against defendant and in favor of plaintiff in the justice’s court action. On May 22, 1935, the court entered its judgment in the proceeding to determine title to the effect that, as between petitioners and defendant in the justice’s court action, defendant was the owner of the attached property. Within ten days thereafter petitioners moved the court for a new trial, which motion was denied, and order to that effect was entered on July 27, 1935. Thereafter, to wit, on August 12, 1935, petitioners filed and served their’notice of appeal from the judgment determining title, each depositing the sum of $100 cash in lieu of undertaking on appeal. Both appeals were set for trial

de novo

in respondent court on October 7, 1935. Meanwhile, on Septem

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ber 15th, the plaintiff in the original justice’s court action, moved the court to dismiss the appeals, which motion was granted, and on September 30th order was entered dismissing the appeals on the ground that the order appealed from was not an appealable order and, hence, that the respondent court had no jurisdiction to entertain the appeals.