Lewis v. Superior Court

CHIPMAN, P. J.

The action is brought to prohibit the defendants from proceeding to try the case

de novo

in which H. S. Parker is plaintiff and the petitioner here is defendant. It appears that the action last above referred to was commenced in the justice court of Chico township; it came on for trial; the plaintiff submitted his evidence and rested, whereupon defendant moved for a judgment of nonsuit and dismissal of the action on the ground that the plaintiff had failed to prove his alleged cause of action, and the facts were insufficient to constitute a cause of action. The motion was granted and judgment of nonsuit and dismissal of the action duly entered. Plaintiff thereupon served notice of appeal to the superior court1

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on questions of both law and fact. ’ ’ The appeal was perfected and “certified copy of the justice’s docket, together with the pleadings, all notices, motions and all other papers filed in the cause, the notice of appeal and undertaking, was filed in the clerk’s office of the superior court.” It further appears that “said H. S. Parker, plaintiff, did not prepare a statement of the case and file the same with the said justice or judge, nor was any such statement

[485]

prepared and filed or prepared or filed, or at all.” Some time after the said appeal was perfected and the said papers filed with the clerk of the superior court, as aforesaid, defendant moved the court, after due notice of the motion to plaintiff Parker, to dismiss the appeal “upon the ground that the said appeal was taken upon questions of law, and that no statement of the case was made or filed in the justice’s court from which the appeal was taken”; and that “an involuntary judgment of nonsuit is a question of law, and that the appeal was not perfected . . . because of there having been no statement of the case filed in the said justice’s court.” The motion came on for hearing and was denied by the court, ‘ ‘ and the court thereupon set the case down for trial

de novo

in the said superior court,” to which defendant objected on the grounds above stated and that the “said superior court was without jurisdiction to do otherwise than to dismiss the said appeal, which said objection of the defendant was overruled by the said superior court, and defendant excepted thereto.” The writ of this court is prayed for to prohibit the said superior court from trying said case