Harpold v. Superior Court

STURTEVANT, J.

This is an original application to this court praying for a writ of mandate directing the respondent court to take jurisdiction of and hear a certain case on appeal from the justice’s court.

Heretofore Laura E. Mathis commenced an action in the justice’s court against the petitioner and another. Thereafter such proceedings were had that on the fifth day of August, 1921, judgment was rendered against the defendants in that action; thereafter the petitioner prepared a notice of appeal purporting to appeal from said judgment, and in his petition in this case he alleges that he filed the notice of appeal and that he has annexed a copy of the notice to his petition; such a paper appears as an exhibit, and there is nothing in the record showing that the same was served on anybody or at all. In his petition the petitioner avers that he filed in the justice’s court an undertaking on appeal, and that the same is attached to the petition. It is further alleged that fhe papers on appeal were thereafter transferred to the clerk of the superior court and that the proceeding was assigned to Department Nine of the superior court; that Honorable Frank H. Dunne is the judge presiding in said department of said court; that on the twelfth day of November, 1921, the plaintiff Mathis appeared in the superior court and moved to dismiss the appeal; that thereafter, March 10, 1922, the appeal was dismissed. Although the fact that the record does not show service of the notice of appeal was suggested in respondents’ brief, served April 4, 1922, no showing has been made that the notice of appeal was, in fact, duly served. This petitioner contends that in dismissing the appeal the superior court improperly divested itself of jurisdiction. To this contention the respondent replies that the superior court never acquired jurisdiction because the notice of appeal was never served. To that reply this petitioner calls attention to the fact that when the plaintiff Mathis moved to dismiss the appeal she based her motion on the ground that the notice of appeal was not served upon petitioner’s codefendant, T. T. Quinn, and that by

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so framing her notice of motion she waived all other grounds. To this last contention the respondent replies that the due service of a notice of appeal is jurisdictional and that jurisdiction cannot be conferred nor divested by the stipulation of the parties. With this latter contention we agree with the respondent. The petitioner in this proceeding is seeking an order against a court and a judge thereof. He is entitled only to such writs as will operate “to compel the performance of an act which the law