Beal v. Superior Court

CONREY, P. J.

The facts as shown by the petition herein are as follows: The petitioner was defendant in an action brought against her by Herman Perry, in the justice’s court of Los Angeles township, where judgment was rendered against the defendant. The defendant appealed on questions of both law and fact. The judgment was rendered on July 2, 1924. The date of taking the appeal is not given, but it is alleged that the papers on appeal were filed in the Superior Court on July 23, 1924. On July 20', 1925, the defendant, after obtaining “an order shortening time’’ to two days for giving notice of motion, gave notice that on July 22, 1925, he would move for an order setting the case for trial and that it be tried forthwith. On July 22d, the plaintiff and his counsel failing to appear, said motion was presented and granted, and the court began and entered upon the trial by receiving in evidence certain documentary evidence offered by the defendant. The court then continued the cause until the next day, July 23, 1925. On July 23d the plaintiff and his counsel still failing to appear, the court continued the trial to August 3, 1925, and directed that counsel for plaintiff be notified thereof. This notice was given on July 23, 1925. On the third day of August, 1925, the case being called for further trial, plaintiff’s counsel being present for the sole purpose of moving to vacate the order of July 22d setting the cause for trial and that the appeal be dismissed, presented said motions. These motions were taken under submission and on October 20, 1925, the court granted both motions and dismissed the-appeal. By reason of said action of the court and its refusal to further recognize the appeal the defendant has instituted this proceeding for writ of mandate. An alternative writ of mandate was issued herein. Respondents now

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demur to the petition and at- the same time have filed an answer or “return,” which raises no issue of fact.

Section 981a of the Code of Civil Procedure requires the dismissal of all appeals from justices’ courts “where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal” in the Superior Court, unless such time has been extended by written stipulation filed with the clerk of the court. In this case there was no stipulation extending the time. The provisions of section 981a of the Code of Civil Procedure prohibiting the further prosecution of such appeal and requiring the dismissal thereof are mandatory. The language used in expressing the legislative intention is closely parallel to the terms of section 581a of the Code of Civil Procedure, relating to the dismissal of actions in the Superior Court on account of delays in issuance, service, and return of summons. It has been definitely settled that these provisions are mandatory.