Galletta v. Justice's Court

CASHIN, J.

Petition by A. Galletta for a writ of mandate to the Justice’s Court of the City and County of San Francisco to recall and quash an execution issued from that court.

An action was brought by respondent, Felix Lehman, against petitioner in said Justice’s Court to recover the sum of $100. Judgment therefor was entered during the year 1915 and petitioner appealed therefrom on questions of law and fact to the superior court of the city and county of San Francisco. Thereafter no action by either party was taken in the superior court until July 24, 1924, when respondent Lehman moved to dismiss the

appeal

under the provisions of section 981a of the Code of Civil Procedure, upon which motion the court made, and on November 6, 1924, entered its order and judgment dismissing the

action.

Whereupon respondent on November 21, 1924, moved the court, on due notice to petitioner, for its order vacating the previous order and judgment, and for its order dismissing the appeal in accordance with the motion originally made, on the ground that the first order, in dismissing the

action,

had been inadvertently made by the court. After hearing the court vacated the original order, restored the original motion to its calendar, and, after further consideration, made and entered on January 5, 1925, its order dismissing the appeal. Whereupon, pursuant to section 982 of the Code of Civil Procedure, the papers in the case were returned and filed in the Justice’s Court, execution issued therefrom and motion made by petitioner therein for an order recalling and quashing the execution, which motion was denied. In the meantime—the exact date not appearing from the record, but apparently later than the date of the original order—petitioner filed in said superior court his motion to dismiss the action under the provisions of

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section 581, Code of Civil Procedure, for want of prosecution by respondent, which, motion was presented on January-5, 1925, and by the court denied by and as a part of its order last mentioned dismissing the appeal.