Maple v. Allen

California Court of Appeal May 11, 1931 No. Docket No. 388.Published

Before: Barnard

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Holding. The court held that the superior court did not exceed its jurisdiction in dismissing an appeal where the determination of whether the appeal was timely filed rested on a disputed question of fact.

Issues

Whether the superior court exceeded its jurisdiction in dismissing an appeal based on a factual determination regarding the timeliness of the filing.

Disposition. writ discharged

Quotations verified verbatim against the opinion

“The jurisdiction of the superior court to hear this appeal depended upon a question of fact”

“The sufficiency of the showing made in behalf of the attempt to overcome the face of the record, presented a question of fact which was decided by the superior court.”

“The evidence before that court was ample to sustain its action, and nothing here appears to indicate that the court exceeded its jurisdiction in making the order attacked.”

BARNARD, P. J.

A writ of

certiorari

was issued by this court directed to the Superior Court of Tulare County

[110]

and J. A. Allen, as Judge thereof, requiring that court to certify a transcript of its proceedings and records in the case of Peoples Finance &■ Thrift Company of Porterville, a corporation, Plaintiff,

F. E. Maple, C. A. Dewey, Charles Foster and Roy R. Foster, Defendants. The latter action had been appealed to the superior court from the Justice's Court of Porterville- township. The purpose of this proceeding is to review the action of the superior court in dismissing that appeal. The transcript of the proceedings in the superior court sets forth copies of the various pleadings and papers filed in the justice’s court, including a transcript of the docket of that court, from which it appears that the action was begun on May 6, 1930; a summons was issued and returned as served on these petitioners on June 3, 1930; a trial was had on October 23, 1930; and a judgment in favor of the plaintiff was entered in October 27, 193-0. Notice of the entry of this judgment was mailed to the respective attorneys on October 28, 1930. Notice of appeal and an undertaking on appeal were filed on January 3, 1931.

It further appears that a notice of a motion to dismiss the appeal on the ground that the superior court had no jurisdiction to hear the same was given on January 30, 1931, and filed in the superior court on January 31, 1931. On February 9, 1931, two affidavits were filed in the superior court. One of these was by F. E. Maple stating that he accompanied his attorney to Porterville on October 29, 1930, for the express purpose of filing the papers on appeal in the action referred to; that these papers were left with the clerk of the justice’s court; that a conference followed in reference to settling the case; that during this conference at the office of the justice of the peace, affiant heard a remark by his attorney and by the justice of the peace to the effect that the clerk -of said court had five days’ time in which to send the papers to the superior court. The other affidavit was by the attorney for the defendants in the action referred to, being the attorney for the petitioners herein, stating that on October 29, 1930, he received from the justice of the peace of Porterville township, a notice of the entry of judgment in said matter; that he prepared the necessary papers on appeal and forthwith delivered them to the clerk of said justice’s court, paying at said time the sum of $9, being the required fees; that he went to Porterville, in company with

Maple v. Allen

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BARNARD, P. J.

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