Palmese v. Superior Court

NOURSE, J. pro tem.

*

By his petition in this matter peti tioner sought a writ of certiorari to review the action of the appellate department of the respondent court dismissing an appeal taken by him from a judgment of the Municipal Court of the Los Angeles Judicial District. Being satisfied that the facts alleged in the petition did not show that the respondent court had exceeded its jurisdiction and that therefore a writ of review could not issue (Code Civ. Proc., § 1068), but being further satisfied that the facts did show that the respondent court had refused to exercise its jurisdiction to hear and determine petitioner’s appeal from the judgment of the municipal court and had therefore declined to perform a duty which it was by statute specially enjoined to perform, we issued an alternative writ of mandate.

(Hennessy

v.

Superior Court,

194 Cal. 368 at 372-374 [228 P. 862] ;

Traders Credit Corp.

v.

Superior Court,

111 Cal.App. 663 [296 P. 99]; Code Civ. Proc., § 1085.)

We are satisfied that a peremptory writ should issue. Petitioner commenced an action in municipal court against one Baffa. Baffa answered and filed a cross-complaint. Petitioner did not appear at the trial and judgment by default was entered against him on the cross-complaint. This judgment was entered November 1, 1960, and notice of entry was given on November 25th. On December 16th, petitioner moved, under section 473, Code of Civil Procedure, to vacate the

[602]

judgment. This motion was denied on January 25th and the order denying the motion was entered on January 26, 1961. On January 31, Baffa gave petitioner notice of the ruling on the motion. On February 9th petitioner filed a notice of appeal from the judgment and on February 10th he filed a notice of appeal from both the judgment and the order denying his motion to vacate the judgment. On March 20, 1961, Baffa moved the respondent court to dismiss the appeal and on March 27th this motion was granted.