Oppenheimer v. Deutchman

SWAIN, J.

The plaintiff appeals from a judgment of dismissal with prejudice and from the order taxing costs.

The action was originally brought in the Municipal Court of San Antonio Judicial District. A motion for change of venue to the Municipal Court of Beverly Hills Judicial District was granted. Plaintiff appealed from that order. Pending that appeal, the case was transferred, and the defendant’s demurrer to the complaint was sustained with 10 days to amend. The plaintiff, though duly notified of that order, did not amend the complaint, and, on ex parte motion of the defendant, the action was dismissed with prejudice.

The appellant contends: 1. That the Municipal Court of Beverly Hills Judicial District had no jurisdiction to proceed, pending the appeal. (Note. After the demurrer was sustained the order for change of venue was affirmed. (Civ. A. No. 8314).) 2. That appellant was entitled to notice of the motion for judgment. 3. It was error to dismiss with prejudice. 4. That the court erred in sustaining the demurrer to the complaint. 5. It was error to deny motion to retax costs.

I.

Taking an appeal from an order of a municipal court granting a change of venue does not of itself stay proceedings in the court to which the case was transferred.

The modern rule is that the matter of stay of judgments, etc., when an appeal is taken, is regulated by statute.

*Supp. 878

4 Corpus Juris Secundum, 1108: “Whether a supersedeas or stay of proceedings is effected by an appeal or writ of error without more is largely dependent on the statutes of the particular jurisdiction.’’ 3 Am.Jur. 196: “The general rule in the various jurisdictions in this country is that the writ of error or appeal under modern statutes, which is in effect an error proceeding, does not of itself operate as a supersedeas. This matter is now governed by statute in most jurisdictions, which authorizes the supersedeas upon certain conditions.''

Stays on appeal from superior courts are governed by Code of Civil Procedure, section 949, which lays down the general rule, “. . . the perfecting of an appeal stays proceedings in the court below upon the judgment or order appealed from.” That section also lists certain exceptions to this general rule, one of which is an appeal from an order granting a change of venue, which may be stayed only by a writ of supersedeas. This section does not apply to appeals from municipal courts. (Code Civ. Proc., § 959.)