Middlebrook v. Superior Court

CONREY, P. J.

On the twenty-second day of July, 1924, the petitioners herein appealed to the Superior Court of Los Angeles County from a judgment rendered against them as defendants in the justice’s court of Los Angeles township. On September 18, 1924, the Industrial Loan & Investment Company, plaintiff in that action, duly presented to the court a motion to set the case for trial. That motion was made upon notice and also according to a stipulation between the parties “that said cause might be called for setting” at that time. Pursuant to said motion “and pursuant to said stipulation, the respondent superior court set the trial of said appeal for the 23rd day of September, 1925, in department 9 of said court.” In August, 1925, upon motion of the plaintiff in that action, and solely upon the ground that the appeal had not been brought to trial within one year from the date of filing of the appeal, the appeal was dismissed. By reason of the dismissal so entered the Superior Court has refused to try the case.

The facts above stated appear in the petition for writ of mandate. Petitioners contend that in dismissing the appeal the Court acted in excess of its jurisdiction. Wherefore, they now by this proceeding seek to compel that Court to vacate the order of dismissal and proceed to try the cause upon its merits.

Section 981a of the Code of Civil Procedure provides for dismissals of appeals from justices’ courts where not brought to trial within one year, in the following language: “No action heretofore or hereafter appealed from the justice court to the superior court, shall be further prosecuted, and no further proceedings shall be had therein, and all such actions heretofore, or hereafter appealed, must be dismissed by the court to which the same shall have been appealed, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in said superior court, unless such time be

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otherwise extended by a written stipulation by the parties

to

the action filed with the clerk of the superior court to which the appeal is taken; ...”