Hochheimer & Co. v. Superior Court

HOUSER,

J.

Certiorari. The purpose of this proceeding is to determine whether or not the superior court exceeded its jurisdiction in dismissing an appeal from the justice’s court; also whether or not the justice’s court exceeded its jurisdiction in the action pending before it in rendering a judgment on a counterclaim.

It appears that judgment was rendered against the plaintiff on a counterclaim in the justice’s court in the month of April, 1919; that shortly thereafter an appeal therefrom to the superior court was perfected by the plaintiff and the cause set for trial in the superior court on November 5, 1919, at which time, neither of the parties appearing in court, the cause went “off calendar.” Nothing further was done in the matter by anyone connected therewith until on or about October 1, 1923, at which time plaintiff’s attorneys served on defendants a notice of motion to set the cause for trial, and on the same day defendants’ attorneys served on plaintiff a notice of motion to dismiss the appeal on the ground that it had not been diligently prosecuted, which latter motion was granted by the court.

Section 980 of the Code of Civil Procedure, which deals with the powers of the superior court on appeal, and which section since its amendment in 1880 has remained unaltered, provides in part that “for a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the superior court, . . . may order the appeal to be dismissed. ’ ’

The legislature at its session in 1923 [Stats. 1923, p. 755], passed an act known as section 981a of the Code of Civil Procedure, which also affects appeals from the justice’s court. Its provisions, so far as are deemed here applicable

[208]

in the consideration of that part of the particular matter now before the .court, are as follows: "No action heretofore . . . appealed from the justice court . . . shall be further prosecuted, . . . where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal . . . ;

provided, however,

that in any appeal pending when this section takes effect, a judgment or (of) dismissal shall not be entered under the direction hereof sooner than January first, 1924.”