Grafton v. Superior Court

CRAIG, J.

One Lizzie A. James having recovered judgment against the petitioners herein in the justice’s court of Venice township, they perfected an appeal to the superior

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court of Los Angeles County on October 28, 1922, and on April 17, 1923, the case was on motion of the plaintiffs set for trial in the superior court on January 31, 1924. After the date when the cause was set for trial, and on June 14, 1923, the following section was added to the Code of Civil Procedure as number 891a (Stats. 1923, p. 755): “No action heretofore or hereafter appealed from the justice court to the superior court, shall be further prosecuted, and no further proceedings shall be had therein, and all such actions heretofore, or hereinafter appealed, must be dismissed by the court to which the same shall have been appealed, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, 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, unless such time be otherwise extended by a written stipulation by the parties to the action filed with the clerk of the superior court to which the appeal is taken;

provided, however,

that in any appeal pending when this section takes effect, a judgment or dismissal shall not be entered under the direction hereof sooner than January first, 1924; and

provided further,

that any superior court may, by existing rule or by rule hereafter to be enacted, provide for dismissal of such appeal within a time less than one year.”

On January 8, 1924, petitioner was served by opposing counsel with notice of motion to dismiss said appeal, upon the ground that the same had not been set for trial within one year from the date of its filing in the superior court, and on January 18, 1924, this motion was granted. Petitioner thereafter sought, in this court, an alternative writ of mandate, which was issued, and it is here contended that the superior court, without authority, applied retroactively the provisions of the section last quoted in dismissing the appeal, and in refusing to hear the same on the date set for trial thereof; that petitioner is advised upon a full and fair statement of the case to his counsel that, he has a good and meritorious defense, and that the court below would by such dismissal deprive him of a vested right.