Western Greyhound Lines v. Superior Court

VALLÉE, J.

Proceeding in mandamus to compel the superior court to dismiss an action and to command the clerk thereof not to transmit the action to the Superior Court of the City and County of San Francisco.

On November 28, 1956, Elizabeth Ritchie, the real party in interest, filed an action in the Superior Court of the County of Los Angeles for damages for personal injuries. The complaint named petitioner as a defendant and alleged that about July 16, 1956, the plaintiff sustained personal injuries in the vicinity of the San Francisco terminal of petitioner. Thereafter petitioner filed in the action a motion for a change of place of trial to the Superior Court of the City and County of San Francisco.

On January 4, 1957, the motion was granted. The minute order granting the motion reads :

“Motion of defendant Pa- Motion Granted eific Greyhound Lines, a corporation, for change of venue to City and County of San Francisco ’ ’

The minute order was entered the same day. No other order was made.

On January 24, 1958, petitioner filed a motion to dismiss the action. The ground of the motion was that plaintiff had failed within one year from the date the motion for change of place of trial was granted to cause the action to be transferred to the proper court and had failed to pay the costs and fees of such transfer. The motion was denied.

[218]

Section 399 of the Code of Civil Procedure, so far as pertinent, reads:

. “When an order is made transferring an action or proceeding under any of the provisions of this title, the clerk . . . must, upon payment of the costs and fees, transmit the pleadings and papers therein ... to the clerk ... of the court to which the same is transferred.”

Petitioner seeks a writ compelling the superior court to dismiss the action and commanding the clerk not to transfer it. It is undisputed that the plaintiff did not pay the costs and fees of the transfer within one year after the entry of the order of transfer. It was the obligation of plaintiff to pay the costs and fees of the transfer if it was in fact made. (Code Civ. Proc., § 399.) If the “costs and fees of making up the transcript or papers or for transmission of the same to the clerk or judge of the court to which it is ordered transferred, or of filing the papers anew, have not been so paid for one year after the entry of the order for transfer,” the action must be dismissed. (Code Civ. Proc., § 581b.) Section 581b is mandatory, and if the costs and fees are not paid in time the action must be dismissed.