Morgan v. Somervell

WHITE, J.

In October, 1926, appellant executed and delivered her promissory note in the sum of $4,150, the principal being payable in monthly instalments of $50 each commencing December 1, 1926, with interest on the unpaid principal at the rate of 7 per cent per annum, payable quarterly. In April, 1928, plaintiffs acquired ownership of this note, the payment of which was originally secured by a deed of trust, but the last-named instrument became valueless by reason of the foreclosure of and sale under a prior mortgage on the same property covered by the aforesaid deed of trust. On November 2, 1933, an action was commenced in the Supe

[399]

rior Court of Los Angeles County to recover the unpaid balance due on the note, amounting to $1780.68, which amount, with unpaid interest, totaled less than $2,000. On December 18, 1934, the superior court rendered judgment for plaintiffs in the sum of $1780.68 with accrued interest. Upon appeal such judgment was reversed by Division Two of this court on March 5, 1937, for the reason that the superior court was without jurisdiction to enter the judgment from which the appeal was taken.

(Morgan

v.

Somervell,

19 Cal. App. (2d) 434 [65 Pac. (2d) 820].)

Upon the going down of the

remittitur

plaintiffs made a motion in the superior court to transfer the cause to the Municipal Court of the City of Los Angeles, and at the same time appellant herein, as one of the defendants in the action, moved the court to dismiss the same. By its order made August 12, 1937, the superior court denied appellant’s motion to dismiss and granted plaintiffs’ motion to transfer the cause to the municipal court. From the last-mentioned order of transfer this appeal is prosecuted. No brief has been filed on behalf of respondents.

The order of transfer to the municipal court was made pursuant to the terms of section 396 of the Code of Civil Procedure, which section was amended in 1935 to include the following provision: “An action or proceeding which is transferred under the provisions of this section shall be deemed to have been commenced at the time the complaint or petition was filed in the court from which it was originally transferred.”