Napolitano v. Superior Court

CRAIG, J.

We are asked to vacate an order of the Superior Court of Los Angeles County dismissing an appeal from a judgment of the justice’s court, rendered in an action of Agustino Riggio against J. Napolitano, petitioner herein.

It appears without conflict that the case on appeal was not brought to trial until after the expiration of one year from the date of its filing in the Superior Court. It was set for trial therein on the sixth day of December, 1926. At the time of being set down for trial counsel for both sides were present in court, and orally stipulated to the date which was fixed; on December 6, 1926, both sides were present, and the case was tried. The petition alleges that judgment was then rendered in favor of the defendant, petitioner. No return was made by respondents, and so this statement must be accepted as true, although the clerk’s transcript contains no copy of the judgment. Thereafter counsel for Riggio moved the court to set aside the judgment and to dismiss the appeal. No stipulation in writing extending the time for trial was filed as permitted by section 981a of the Code of Civil Procedure. Nevertheless, the court proceeded to trial without objection from either side, and rendered judgment before its attention was called to the fact that the trial had not taken place within

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the time allowed. The motion was then made and was granted. In this • the Superior Court only performed its duty.

Decisions dealing with the various statutes of limitation which merely provide for the time within which actions may be begun are not in point, for such provisions may be waived otherwise than by written stipulation filed ■in court. Neither are cases construing section 583 of the Code of Civil Procedure to be regarded, because the last-named section merely directs the dismissal of an action not brought to trial until after the limited time has elapsed. (See

Miller & Lux, Inc.,

v.

Superior Court,

192 Cal. 333 [219 Pac. 1006], and

Rio Vista Min. Co.

v.