County of Alameda v. Superior Court

DRAPER, J.

Does the 1959 amendment govern the time within which an action must be tried anew in the superior court after appeal from judgment in the small claims court f That is the question presented by this proceeding in mandamus.

Judgment in the small claims court was entered in favor of petitioner county and against the real party in interest for $145. Defendant’s appeal in that action was filed in the superior court on May 18, 1959. The action not having been brought to trial, petitioner on September 22, 1960, moved in the superior court to dismiss the appeal. The motion was denied September 29, 1960. On petition by the county, we issued alternative writ of mandate.

Coneededly, no showing of lack of diligence by appellant-real party in interest was made.

At the time the appeal was taken, and until Sep

[504]

tember 18, 1959, the effective date of the Statutes of 1959, the code provided that such an appeal should be dismissed when not brought to trial within one year if “the delay in bringing said appeal to trial . . . was occasioned by lack of reasonable diligence on the part of the appealing party” (Code Civ. Proc., § 981a, made applicable to small claims court appeals by Code Civ. Proc., § 117j). In 1959, section 117jj was added (Stats. 1959, ch. 342, p. 2266, § 1). It provides that such an appeal “must be dismissed . . . where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in said superior court.”

It is not questioned that this section, considered alone, restores the rule which existed until 1953 (Code Civ. Proc., § 981a, as amended by Stats. 1937, eh. 515, p. 1503). Under the section as it stood before the 1953 amendment, dismissal was mandatory after the expiration of one year from filing of the appeal (Emerson v.

Superior Court,

7 Cal.2d 685 [62 P.2d 363];

Sanford

v.

Superior Court,

111 Cal.App.2d 311 [244 P.2d 463]). If only section 117jj were here involved it would seem clear that the effect of adding this section in 1959 was to return to the pre-1953 rule making dismissal mandatory.