Mamer v. Superior Court

SHENK, J.

This is an application for the writ of

mandamus

to compel the respondent superior court to hear and determine the motions of petitioners to set aside judgments entered against them as plaintiffs in their action against the Lockheed Aircraft Corporation.

Demurrers to second amended complaints were argued and submitted on April 9, 1940. On April 29th, the demurrers were sustained without leave to amend. Actual notice of this ruling was received by the petitioners ’ attorneys in San Francisco on April 30th, whereupon they commenced immediately to prepare notices of motions for leave to file third amended complaints, but before the preparation of the papers was completed judgments were, on May 3d, entered against them. On May 6th, notices of the entry of said judgments were served. On May 15th, the petitioners served and filed with the clerk of the respondent court in each case a notice of motion to set aside the judgment and for leave to file a third amended complaint. On the same day they filed with the clerk of the court a notice and demand in each case for a transcript pursuant to the provisions of section 953a of the Code of Civil Procedure. The pertinent part of each document reads as follows: “You are hereby notified that the plaintiffs above named intend to appeal from the judgment given, made and entered in the above entitled action in said superior court, on or about the 3rd day of May, 1940 ...”

When the motions to set aside the judgments came on for hearing on May 21st, counsel for the defendant interposed an

[571]

objection on the ground that the court was without jurisdiction to hear or determine the motions for the reason that the aforesaid notice and demand for a transcript constituted a notice of appeal and had the effect of removing jurisdiction from the superior court to the reviewing court. The objection was sustained,—whereupon this proceeding was instituted.

The question is whether the notice and demand for a transcript in the language above quoted is, in effect, a notice of appeal. The petitioners insist that it is not. The respondent contends that by an unbroken line of decisions since the amendment of section 940 of the Code of Civil Procedure in 1921 it has been held by this court and the District Courts of Appeal that a similar notice and demand for a transcript constitutes a notice of appeal.