Gunn v. Superior Court

ADAMS, P. J.

In a petition for a writ of mandate filed herein it is alleged that a judgment was entered against petitioner in the Justice’s Court of No. 5 Township in Lake County on May 17, 1945; that petitioner then filed notice of appeal to the Superior Court of Lake County, paid $8.00 in fees to the justice of the peace, and put up $100 in cash in lieu of an appeal bond; that when the matter came up in the superior court to be set for hearing, it was contended by appellee that the said court was without jurisdiction of the appeal for the alleged reason that the amount paid to the justice of the peace as fees was insufficient; and that the appeal was thereupon dismissed. Petitioner prayed for a writ directing the said superior court to set aside its order of dismissal and to hear the appeal. We issued an alternative writ.

It appears from the record before us, which, contains a written opinion by the superior court on the motion to dismiss, that it was contended by appellee, and agreed by the court, that the amount which should have been deposited with the justice of the peace as fees on the appeal was $9.00, to wit: clerk’s filing fee, $6.00 (Pol. Code, §4300a); law library fee, $1.00 (Bus.

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Prof. Code, § 6321); justice’s fee “For certificate and transmitting transcript and papers on appeal,” $1.00 and “For issuing a transcript of the docket,” $1.00 (Pol. Code, § 4300e).

We are of the opinion that in its computation of the amount necessary to be paid to the justice of the peace on such appeal the trial court erred. Section 977 of the Code of Civil

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Procedure provides that the record on appeal from a justice’s court shall include among other papers “a certified copy of the entries in the docket relating to the action.” It thus appears that a transcript of the docket entries is a necessary part of the “transcript and papers on appeal,” for certifying and transmitting which the justice of the peace is entitled to a fee of $1.00, and no more. He is not therefore entitled to an additional fee for issuing a transcript of the docket for such purpose.

Furthermore, even if the additional dollar for issuing the transcript on appeal should have been paid to the justice of the peace, .he has made no claim for same, and if he considered that he was entitled to its payment he, nevertheless, issued the transcript and same was filed with the clerk of the superior court with the other papers on appeal; and he transmitted to the county clerk the total fees payable to that clerk, to wit, $7.00. It was stated in two early cases that a justice of the peace may waive the fees payable to him alone; and where he had sent up the record on appeal the fact that