Chapman v. Superior Court

BARNARD, P. J.

This is an application for a writ of mandate to compel the Superior Court of Fresno County to dismiss an appeal from a justice’s court.

It appears from the stipulated facts that on February 6, 1928, an action was brought in the Justice’s Court of the City of Fresno by the Fresno Investment Company, a corporation, against C. S. Chapman, the petitioner herein, to recover $173.85; that a trial was had resulting in a judgment for the defendant; that within the time allowed by law and during the month of December, 1928, the plaintiff in that action duly perfected an appeal to the Superior Court of Fresno County; that on March 1, 1929, on motion of the plaintiff, the appealed cause was set for trial in the Superior Court on April 18, 1929; and that on March 22’, 1929, the court granted a motion made by the defendant to dismiss the appeal, the motion having been made upon the. ground that the appeal was from the judgment of a purported court which had no legal existence, and that at the time the judg

[580]

ment was rendered the said court had no jurisdiction to render any judgment whatsoever. In this connection it is stipulated that on February 23, 1929, one Earl J. Church, who had been presiding over the Justice’s Court of the City of Fresno, and who had rendered the judgment appealed, voluntarily vacated the office of justice of the peace of the said justice’s court, for the reason that the auditor of Fresno County had refused to pay his salary, this refusal being based upon the advice of the district attorney of Fresno County to the effect that said justice’s court had no legal existence. It is further stipulated that the office of justice of the peace of the city Justice's Court of Fresno remained vacant from February 23, 1929, to and including March 16, 1931, when it was “reestablished” pursuant to an order of the board of supervisors of Fresno County. It is further stipulated that such re-establishment followed a writ of mandate issued by the Supreme Court of California.

(Church

v.

Board of Supervisors,

211 Cal. 367 [295 Pac. 516].) On April 1, 1931, the Fresno Investment Company filed a notice of motion to vacate the order dismissing the appeal from the justice’s court upon the grounds that the judgment appealed from was a legal judgment and that the superior court had jurisdiction of the appeal, and that the previous order of said superior court dismissing said appeal was a nullity. After a hearing, this motion was granted and an order made on April 3, 1931, vacating and setting aside the previous order dismissing the appeal. On April 16, 1931, this petitioner filed notice of motion to .dismiss the appeal upon the ground that the same had not been brought to trial within the period of one year. On May 26, 1931, an order was made by the superior court denying this motion. It further appears that this petitioner has not signed or filed any written stipulation extending the time for hearing said appeal.