California Law & Adjustment Co. v. Superior Court

CONREY, P. J.

On petition for writ of

mandamus,

to compel the dismissal of an appeal from a justice’s court.

According to section 981a of the Code of Civil Procedure, added to that code by the legislature at its 1923 session, it becomes the duty of a superior court to dismiss any appeal from a justice’s court, “where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in such 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 which the appeal is taken.” The actual wording of the section is that all such

actions

must be dismissed; but it is settled by decision, based upon a consideration of the context and of the purposes of the enactment, that the dismissal referred to and intended is a dismissal of the appeal and not of the action.

(Meier

v.

Superior Court,

67 Cal. App. 135 [227 Pac. 490, 493].)

The petitioner here shows that in September 1923, in a justice’s court of Los Angeles township, it obtained judgment against one Hiro Kakiuchi, in the sum of $210.22; that the defendant appealed from said judgment on questions of

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both law and fact; that the appeal papers were filed in the superior court on October 17, 1923; “that on the 3rd day of December, 1923, the attorney for petitioner caused said case to be set for trial in the respondent court on the 4th day of December, 1924.” Petitioner further alleges that on December 4, 1924, when the case was called for trial, petitioner moved for dismissal of the appeal upon the ground that the defendant had failed to bring the appeal to trial within one year from the date upon which the appeal had been filed; that respondent court denied said motion, and the trial of said action then proceeded, and judgment was given in favor of the defendant.