Kilker v. Superior Court

PLUMMER, J.

This matter is before us upon an application of the above-named petitioner for a writ of mandate directing the respondent to enter an order of dismissal in a certain action pending in said court wherein the above-named petitioner is plaintiff and Albert Casper is defendant, in which action the petitioner had judgment against said Casper in the sum of $158.49 as principal and $6.25 costs, in the Justice’s Court of the City of Vallejo, on the twenty-ninth day of April, 1931, and thereafter appealed to the Superior Court of the State of California, in and for the County of Solano, and now known in said last-mentioned court as civil action No. 11,161.

The record shows that the appeal in said action from the Justice’s Court of the City of Vallejo was perfected on

[81]

the twelfth day of May, 1931, and the papers constituting the appeal filed with said Superior Court in said action on said date. The record shows that thereafter the cause was set for trial on Wednesday, the third day of February, 1932, at 10 o’clock of said day; that at the request of the plaintiff the order setting the cause for trial was vacated, and the cause dropped from the calendar; thereafter, and on the seventeenth day of May, 1932, the defendant filed a memorandum motion for the setting of said cause for trial; that thereafter, and on the twenty-fourth day of June, 1932, before said cause had been set for trial, the plaintiff filed and served his notice of motion and motion to dismiss the appeal on the ground that the cause had not been brought on for trial within one year after the perfecting of the appeal therein; that on the fifth day of July, 1932, the motion came on for hearing; thereafter, on the nineteenth day of October, 1932, said Superior Court (Honorable W. T. O’Donnell presiding) made and entered its order denying the plaintiff’s motion to dismiss the appeal.

The record shows some controversy between counsel for the defendant and counsel for the plaintiff relative to the setting of the cause for trial, and affidavits were filed in the Superior Court by counsel for the plaintiff, and also for the defendant. A reading of these affidavits discloses that no written stipulations were entered into, and that whatever agreements or understandings may have been had between counsel for the respective parties, such agreements or stipulations, if any, were purely oral. An examination of the affidavits also discloses no legal basis for the plea of estoppel. Section 981a of the Code of Civil Procedure reads as follows “No action heretofore or hereafter appealed from the Justice’s 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 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 otherwise extended by a written stipulation by the parties to the action filed with the clerk of the Superior Court to