Rossi v. Superior Court

THOMPSON, J.

This is a petition for a writ of

mandamus

to compel the Superior Court of San Joaquin County to dismiss an appeal from the Justice’s Court of Stockton Township, under the provisions of section 981a of the Code of Civil Procedure, for failure to prosecute the appeal with due diligence.

In a suit for damages, the Justice’s Court of Stockton Township rendered judgment in favor of this petitioner for the sum of $791.50, on November 30, 1932. On motion for new trial, the judgment was modified and the motion was denied as to the damages awarded in the sum of $350, on January 28, 1933. Notice of appeal from that judgment was served and filed with the justice’s court on February 9, 1933. The fees of the justice of the peace were fully paid. An undertaking on appeal was served and filed on the last-mentioned date in conformity with the provisions of section 978 of the Code of Civil Procedure. All pleadings and proceedings were transmitted and filed with the clerk of the Superior Court of San Joaquin County, March 18,1933. July 13,1934, a stipulation of counsel was filed authorizing the return of the record to the justice’s court for the purpose of permitting the justice of the peace to add to the record on appeal certain entries contained in his docket. This stipulation specifically provides that it shall not affect the plaintiff’s right to a dismissal of the appeal for want of prosecution. March 18, 1935, the cause was set for trial by the Superior Court, over the protest of the plaintiff. April 8,1935, the plaintiff moved the Superior Court to dismiss the appeal under the provisions of section 981a of the Code of Civil Procedure, for lack of prosecution, which was denied.

The Superior Court is without jurisdiction to try this cause on appeal from the justice’s court for the reason that

more

than one year has elapsed since the appeal was perfected. Section 981a of the Code of Civil Procedure is

[93]

mandatory in that regard when no stipulation extending the time of trial has been filed by the parties to the action.

(Vecki