Davis v. Superior Court

STURTEVANT, J.

This is an application for a writ of prohibition to restrain the respondent Superior Court from further proceeding to try the purported appeal in the case of

Davis

v.

Stadler.

The application was made to this court on December 22, 1924. On the twenty-third day of December, 1924, this court ordered an alternative writ to issue returnable before this court on the twelfth day of January, 1925. The respondent answered by filing an affidavit by J. J. Rose, Esq., attorney for Stadler, a general demurrer and a certified copy of the judgment of the Superior Court made and entered in the case of

Davis

v.

Stadler

on the twenty-ninth day of December, 1924. The cause was submitted on all of said documents, as on a motion for judgment on the pleading.

On the fourteenth day of June, 1924, Honorable Jacob Harder, Jr., as justice of the peace of the township of Eden, county of Alamada, state of California, in an action wherein Robert Davis and Elise Davis were plaintiffs and Jacob Stadler was defendant, entered a judgment in favor of the plaintiffs against the defendant in the sum of $267.52, and said justice thereupon gave written notice to all parties that said judgment had been entered. Thereafter a purported appeal was taken to the Superior Court. Thereafter the plaintiff appeared in the Superior Court and made a motion to dismiss alleging that the said appeal had not been legally perfected by reason of the fact that the fees required to be paid to the justice court under the provisions of section 981 of the Code of Civil Procedure were not paid until a date more than thirty days after the rendition of the notice of judgment in the said action entitled

Davis

v.

Stadler.

The petition further recites that the motion to dismiss was thereafter presented to the Superior Court and that the Superior Court denied the motion and it is further averred that the respondent Superior Court will proceed and try said action

de novo

unless restrained by this court.