Behymer v. Superior Court

SHAW, J.

Application for a peremptory writ of mandate commanding the superior court and the Honorable George H. Hutton, judge thereof, to vacate and set aside an order dismissing an appeal from a judgment rendered in the justice’s court in an action wherein one O. W. Hobbs was plaintiff and petitioner was defendant.

The judgment from which the appeal was taken was rendered on September 26, 1911, on which date defendant served his notice of appeal and filed the required undertaking, which action was followed, on October 3, 1911, by depositing with the clerk of the'superior court a transcript of the justice’s docket and the files and papers required upon hearing the case on appeal. The order of dismissal was made upon a motion based upon the ground that appellant had failed and neglected to pay to the clerk of the court the sum of six dollars as a deposit for costs, as required by rule 27 of the superior court, which is as follows: “In any civil action appealed from an inferior court, if the transcript and papers are not filed in the clerk’s office and six dollars paid to the clerk as a deposit for costs, within thirty days after the notice of appeal and undertaking on appeal are filed in such inferior court, such appeal will be dismissed on motion made upon notice to the appellant.” That such requirement is a reasonable one and the court authorized to adopt the rule, is unquestioned. (Code Civ. Proc., sec. 129.) The notice of the motion was given on November 3, 1911, and on the day following, some thirty-nine days after taking the appeal, appellant paid the fee of six dollars as a deposit for costs, thus for the first time perfecting his appeal. Clearly, he was in default, and unless entitled upon the showing made to relief under section 473, Code of Civil Procedure, the writ should not issue. An examination of the affidavits presented at the hearing of the motion fails to disclose any abuse of discretion on the part of the court in denying the appellant relief upon the ground of mistake, inadvertence, surprise, or excusable neglect. Indeed, it appears from the affidavit of petitioner’s attorney that he was familiar with rule 27 and the requirement that the costs should be paid within thirty days, and while conversing with respondent’s attorney as to

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paying the costs of the appeal, he expressed himself as being opposed to paying the same, he, nevertheless, on September 26, 1911, the day on which the appeal was taken, at petitioner’s request, promised to pay the costs upon his client’s promise to come to his office and pay them later; that petitioner’s attorney, according to his affidavit, “fully intended to pay said costs and neglected to do so solely because of forgetfulness brought about by his physical condition,” due to the fact that on September 28, 1911, he submitted to a minor surgical operation, and during all of the time from September 26th to November 4th worked under physical difficulties due to nervousness resulting from said operation, by reason whereof, according to the affidavit of the physician, “he suffered discomfort and distress which rendered him unable to properly attend to his business affairs.” It further appears from a counter-affidavit filed, that on November 4th petitioner’s attorney, in conversation with the attorney for respondent, assigned as a reason for noncompliance with said rule the fact that appellant had not paid to him the said costs, and that he personally refused to advance the same for his said client. Not only does it appear there was a conflict in the evidence as to the reason for appellant’s neglect and failure to pay the costs necessary to perfect his appeal, but, even if uncontradicted, the showing made by appellant fails to exhibit facts upon which this court would be justified in holding the trial court abused its discretion in making the order complained of. The case of