Butler v. Superior Court

THOMPSON, J.

This is a petition for a writ of

mandamus

to compel the Superior Court of Napa County to try and determine an appeal to that court from a judgment of the Justice’s Court of St. Helena Township which was rendered on the pleadings in a suit for unlawful detainer.

It appears that Bernhard Davidow commenced a suit in St. Helena Township of Napa County in unlawful detainer against this petitioner, to which an answer was filed. At the time of the trial no evidence was adduced. On motion of the plaintiff the justice’s court rendered judgment on the pleadings against this petitioner to the effect that the plaintiff in that suit is entitled to possession of the premises which are involved therein. Notice of appeal from that judgment was duly filed “on questions of both law and fact”. An undertaking on appeal was also furnished. A certified copy of the justice’s docket, together with the notice of appeal, the undertaking and the pleadings were transmitted to the

[510]

superior court. No statement on appeal was settled or filed as required by section 977 of the Code of Civil Procedure. The pleadings were not lawfully before the superior court for any purpose: On the theory that the superior court was without a record upon which it could try or determine the appeal on either questions of law or fact, the cause was dismissed. Upon 'that record a petition for a writ of

mandamus

was filed in this court. It is contended the superior court should have determined the appeal on questions of law.

Where an appeal has been properly perfected from a justice’s court to the superior court, either upon questions of law or facts or upon both law and facts, the superior court should hear and determine the appeal, and under such circumstances a dismissal of the action by the superior court would be erroneous since, in effect, the dismissal is a denial of jurisdiction and a refusal to pass upon the matters properly presented to the upper court.

(Golden Gate Tile Co.

v.