Emerson v. Superior Court

EDMONDS, J.,

pro

tem.

Petitioner by this proceeding seeks to compel the superior court to vacate an order of dismissal and to proceed with the trial of an action on appeal from the justice’s court.

On December 27, 1934, petitioner appealed to the superior court from a judgment entered against him in the justice’s court. Within one year thereafter, the parties entered into a written stipulation “that the trial of the above entitled action now set in the above court for November 1, 1935, shall go off-calendar on said date and be re-set upon the said court’s calendar at its earliest convenience”. On November 1st when the ease was called for trial the court made an order that “said cause be placed at the foot of the calendar to be re-set for trial”. In February, 1936, more than one year after the appeal was filed, the ease was set for trial in March, but before that time respondent moved the court for a dismissal of the action. This motion was granted.

Section 981a of the Code of Civil Procedure provides that an action on appeal from the justice’s court

[687]

“must be dismissed” where the appealing party fails to bring the appeal to trial within one year from the date of filing thereof in the superior court “unless such time be otherwise extended by a written stipulation by the parties to the action filed with the clerk of the superior court. . . . ” This provision is mandatory. It does not admit of construction and a trial court may not exercise any discretion where the time fixed by the section has elapsed. In the absence of a written stipulation any action not brought to trial within the statutory period must be dismissed.

(Kilker

v.

Superior Court,

128 Cal. App. 80 [16 Pac. (2d) 811].)

Petitioner contends that the written stipulation by which it was agreed that the case “shall go off-calendar . . . and be re-set upon the said court’s calendar at its earliest convenience” extended the period within which it might be tried. To this we cannot agree. A review of the authorities construing section 981a of the Code of Civil Procedure and similar statutes shows that nothing short of a written stipulation extending in express terms the time of trial to a date beyond the statutory period, or expressly waiving the right to move for a dismissal will toll the running of the statutory time.