Schneider v. Superior Court

YORK, J.

The petitioners here were defendants in an action brought in the Municipal Court of Los Angeles County, wherein judgment was rendered on March 13, 1929, in favor of the plaintiff. Said plaintiff caused execution to issue thereon, together with an order for examination of petitioners as judgment debtors. Petitioners then moved to vacate said order for examination, also to quash execution, to set aside the judgment and enter a different judgment and to set aside the conclusions of law and to enter different conclusions. Each of said motions was denied by the court, and on June 18, 1929, defendants (petitioners) filed notice of appeal from such ruling.

On August 16, 1929, the plaintiff in the Municipal Court action and respondent in the Superior Court appeal, made a motion to dismiss the appeal upon the ground that no bill of exceptions or record on appeal had been prepared. This motion was denied by the Superior Court. Thereafter, to wit, on September 19, 1929, plaintiff and respondent served notice upon defendants and appellants that he would move the court, on September 26, 1929, for an order dismissing the appeal upon the same grounds supporting the first motion—that of August 16th. This motion was submitted upon a certified copy of the notice of appeal filed in the Municipal Court and upon no other record or certificate from the clerk, and under date of October 18, 1929, said motion to dismiss was granted by the Superior Court.

Appellants in that action then presented their petition to this court and an alternative writ of mandate was issued.

Petitioners in said application allege that no notice of entry of the order of the Municipal Court denying their four motions was ever given by the plaintiff to the said petitioners, or either of them, and they maintain that section 953d of the Code of Civil Procedure, added to the code in 1927, now provides a definite method by which

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appellate courts are to be governed in ascertaining whether a moving party has placed himself in a position to terminate litigation by having the appeal of the opposite party dismissed.

Section 953d of the Code of Civil Procedure provides as follows: “Any notice of entry of judgment, or of order granting or denying a motion for a new trial, required by the provisions of section 650, section 659, or section 953a of this code, must be given in writing unless written notice thereof be waived in writing or by oral stipulation made in open court and entered in the minutes.”