Nay v. Superior Court

PLUMMER, J.

This matter is before the court upon petitioner’s application for a writ of mandate, commanding the Superior Court of Napa County and Honorable Percy S. King, as judge thereof, to vacate an order dismissing an appeal by the petitioner taken by him from a judgment entered in the justice’s court of Hot Springs township, in the county of Napa, wherein L. S. Mitchell was plaintiff and N. R. Fowler and the petitioner, H. L. Nay, were defendants.

The facts, as they appear in the pleadings, so far as necessary to be considered in the determination of petitioner’s application, are as follows: On the second day of December, 1924, after a trial had been had- in the above-entitled justice’s court, in the foregoing entitled action pending therein, judgment was rendered and entered against the petitioner; thereafter, and on the said second day of December, 1924, the petitioner, H. L. Nay, defendant in said action, filed in said justice’s court, with the justice of the peace thereof, a notice of appeal to the Superior Court of the County of Napa, from the judgment then and there rendered and entered against him. Said notice of appeal is in the following words and figures, to wit;

[445]

(Title of court and cause.)

“Take notice that the defendant H. L. Nay in the above-entitled action hereby appeals to the Superior Court of the County of Napa from the judgment therein made and entered in the said Justice’s Court, on the 2nd day of December, 1924, in favor of said defendant and against said and from the whole of said judgment. This appeal is taken on questions of law and fact both law and fact.

“Yours, etc.,

“A. W. Hollingsworth,

“Attorney for Appellant.

“To the Justice of said Justice’s Court, and-, Esq.,

Attorney for Respondent.

“Dated December 2, 1924.”

On the same day an undertaking was filed in the sum of $100 to cover costs of such appeal. Within due time thereafter, all the records, papers and files in said action were transmitted by the justice of the peace of said justice’s court to the clerk of the Superior Court of the County of Napa, and were filed by him as records of said Superior Court. Thereafter, and on the sixteenth day of February, 1925, upon motion of the plaintiff in said action, upon good and sufficient grounds which we need not consider, the Superior Court of the County of Napa entered its order dismissing said appeal; that thereafter, and on the sixteenth day of February, 1925, the petitioner in this case filed a second notice of appeal in the justice’s court of Hot Springs township, in the county of Napa, in said action, which notice of appeal is as follows: