Masonic Mines Assn. v. Superior Court

TYLER, P. J.

Mandate to compel the dismissal of an action. The petition alleges in substance that on the thirteenth day of June, 1932, the action sought to be dismissed was filed in Mono County against Masonic Mines Association and others. Thereafter, on August 5, 1932, defendants filed

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a demurrer and also a demand for change of place of trial. The demand for the change was granted and the action was transferred to Alameda County. The record in the case was thereupon transmitted to the clerk of said county. At the time the order of transfer was made the statute provided that refiling costs should be paid within one year after the date when such record arrived in the custody of the clerk of the court to which the case was ordered transferred. The record arrived on August 25, 1932. Thereafter the law upon the subject was amended, shortening the time to make such payment to one year after the date of the order of transfer, payment to be made to the clerk of the court which ordered the transfer. The statute in express terms was made to apply to pending eases. This statute went into effect on the twentieth day of August, 1933. Plaintiffs paid the filing fees to the clerk of Alameda County on August 21, 1933, and the record in the case was filed. Immediately thereafter the demurrer to the complaint was placed on the calendar of the Superior Court of Alameda County for hearing. It was overruled and defendants were given time to answer. Thereafter, on August 30, 1933, defendants, petitioners herein, moved the court to dismiss the action on the ground that the refiling fees were not paid within the statutory time. The motion was denied and the present proceeding followed.

It is admitted that the fees and costs were paid within the time limit as required by section 581b of the Code of Civil Procedure as it read prior to the 1933 amendment, but appellants contend that sections 399 and 581b of the code, as amended, control, and therefore the refiling fees were paid too late. Respondents, on the other hand, insist that appellants’ motion to dismiss was properly denied by the lower court because the provisions of sections 399 and 581b of the Code of Civil Procedure, as amended, were not applicable upon said motion. In support of this contention it is argued that to adopt the claim of petitioners it would be necessary to hold that plaintiffs would have been required to pay the filing fees, under the amended section, on or before August 5, 1933, one year after the time the order was made, which would be fifteen days prior to the effective date of the amendments. In support of the petition appellants have cited us to numerous eases on the right of the