Rabin v. Pierce
Before: THE COURT. —
Synopsis
Certiorari—Improper Dismissal of Appeal from Justice’s Court— Execution Issued by Justice—Ministerial Act.—When an action appealed from a justice’s court to the superior court has been improperly dismissed therefrom, whatever may be the remedy of the appellants for such improper dismissal, they cannot invoke the writ of certiorari to review and annul the ministerial act of the justice in issuing execution thereafter upon the judgment.
Id.—Power of Superior Court to Dismiss Appeal.—The superior court can only dismiss an appeal taken thereto from the justice’s court on questions of law and fact, in case the appeal has not been properly perfected.
Id.—Dismissal not Allowable for Want of Prosecution—Duty of Plaintiff to Prosecute Case.—The superior court has no power to dismiss an appeal for want of prosecution by the appellant. It is the duty of the plaintiff to prosecute the appeal to final judgment.
Id.—Effect of Perfected Appeal—Duty of Superior Court to Determine Case.—Where the appeal is duly perfected, it is the duty of the. superior court to determine the case as if it had been commenced by the plaintiff therein, and the final judgment must be rendered and enforced in the superior court.
THE COURT.
It is made to appear by the verified petition in this case that' a judgment was regularly entered by the respondent justice against petitioners, in March, 1907; that within due time an appeal was perfected to the superior court of Los Angeles county and the papers transmitted thereto, and said cause placed upon the calendar of said court. That afterward, on the 27th of May, 1909, plaintiff moved the superior court to dismiss the appeal, assigning as a reason therefor that the same had not' been prosecuted by appellant with reasonable diligence. On the 29th of May, the defendants, petitioners herein,.'moved to dismiss the action for the reason that plaintiff had failed for a period of t'wo years after said cause had been appealed to the superior court, and after the cause had been at issue, to bring said action to trial. Upon the hearing of these motions, the superior court' denied the motion to dismiss the action, but entered an order granting the motion to dismiss the appeal, and instructed the clerk to send the files back to the justice’s court. The justice, respondent herein, assuming authority by virtue of this last'-mentioned order, issued an execution out of the judgment originally entered by him and from which the appeal was taken, and the same is. in the hands of a constable of the township, and the constable is seeking, by levy, to enforce the same. Petitioners ask this court for an order directing the justice to send up all papers in the cause before him, and that this court review the action of the justice and command the justice to desist from any further proceedings in said action, and to recall the execution issued.
The appeal in this ease having been one upon questions of both law and fact, when the same was perfected, the judgment of the justice was vacated and set aside, and the cause
[736]
was transferred with the entire record to the superior court t'o the same effect as if the action had originally been brought therein. The judgment of the superior court upon such an appeal is executed just as if the action had originally been brought therein and is not remitted to the justice’s court for any purpose.
(Bullard
v.
McArdle,
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)