Taylor v. Superior Court

[446]

THOMPSON (IRA F.), J.

This is an original petition seeking a writ of

supersedeas,

directed to respondent, staying the hearing of an appeal from the municipal court of Los Angeles to the Superior Court, entitled

Alexander et al.

v.

Taylor et al.

The unusual situation presented is as follows : Alexander and Nathan, copartners, recovered judgment in the municipal court against Taylor and his wife, defendants in that action and the petitioners here. The defendants appealed to the Superior Court, furnishing the regular undertaking on appeal. A motion was made to dismiss the appeal and denied on February 6, 1928. A second motion to dismiss was presented and denied on February 15, 1928. On the 10th of March, 1928, the judge of the municipal court who tried the action refused to settle the bill of exceptions on the ground that it had not been filed within the time required by law and on the 23d of March the defendants and petitioners here commenced a proceeding in

mandamus

to compel the municipal court judge to settle the bill. An alternative writ issued, but on April 9th the peremptory writ was denied and petitioners are prosecuting an appeal from that judgment, which appeal is now pending. The petition here alleges that the hearing of the appeal, from the first judgment in the Superior Court was continued by that court from May 29th until June 1, 1928, in order that petitioners might present their application for the writ of

supersedeas.

It is also alleged that George Alexander and Mort Nathan are parties affected by the petition. The order made staying the proceedings required that copies be served not only upon the respondent court but also upon Alexander and Nathan. By way of return the respondent court sets forth that the appeal from the judgment denying the writ of mandate involves the interpretation of section 953d of the Code of Civil Procedure, and is, in the opinion of the judge signing the return, prosecuted in good faith. George Alexander and Mort Nathan have appeared by what they term a special appearance, making a motion to dismiss the order to show cause on the ground “that the court had no jurisdiction to issue the writ directed to the respondents or over the parties named therein.” At the time of the oral argument Alexander and Nathan asked leave to file their demurrer and answer after the motion was