Abbott v. Superior Court

California Court of Appeal Nov 22, 1926 No. Docket No. 5370.Published

Before: Works

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Holding. The court held that a nonappealing party's act of setting an appealed cause for trial more than one year after the appeal was perfected does not constitute a written stipulation or an estoppel to move for dismissal under section 981a of the Code of Civil Procedure.

Issues

Whether a nonappealing party is estopped from seeking dismissal under section 981a when they set the trial date beyond the one-year limit.
Whether setting a trial date beyond the one-year limit constitutes a written stipulation extending time under section 981a.

Disposition. Peremptory writ denied.

Quotations verified verbatim against the opinion

“the fact that in the present instance the nonappealing party caused the appealed cause to be set for trial for a date more than a year after the perfecting of the appeal neither amounted to a written stipulation nor operated as an estoppel.”

WORKS, P. J.

Petitioner was defendant in a certain action in the justice court. Judgment was there rendered

[747]

against him and he prosecuted an appeal to respondent Superior Court. The appeal was perfected on March 10, 1925. Thereafter upon the application of the plaintiffs in the action, after written notice of motion, respondent court set it down for trial on April 30, 1926. The plaintiffs moved the court, on March 30, 1926, after due notice of motion, to dismiss the appeal on the ground that the appealing party had not brought the action on for trial in respondent court within one year, as required by section 981a of the Code of Civil Procedure, and thereupon the appeal was ordered dismissed. On April 30, 1926, the day upon which the action had been set down for trial in respondent court the defendant, petitioner here, appeared before the court and demanded that the trial proceed. Respondent court refused the demand and ordered the cause stricken from the calendar. Thereupon petitioner presented to this court his petition in this proceeding for the purpose of requiring respondent to proceed with the trial and we issued an alternative writ. Respondents have made no return to the writ, although they have been permitted to brief the points involved in the proceeding.

Section 981a of the Code of Civil Procedure contains the provision that an appeal must be dismissed where the appealing party has not brought the appealed cause to trial within a year

(Reynolds

Superior Court,

69 Cal. App. 445 [231 Pac. 354]), “unless such time be otherwise extended by a written stipulation by the parties to "the action. ...”

A question similar to the one here presented was recently before another division of the district court of appeal. It was then determined that when a cause is appealed to the superior court and is set down for trial upon the application of the nonappealing party for a date more than one year after the date upon which the appeal was perfected, such action' upon-the part of the nonappealing party, if it does not amount to-a stipulation 'waiving the requirement of section 981a, estops that party to avail himself of the requirement. See

Abbott v. Superior Court

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WORKS, P. J.

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