Morgan v. Superior Court

SHENK, J.

Prohibition. On September 17, 1929, an attachment suit was commenced in the Justice’s Court of Corcoran Township, Kings County. Judgment was en

[29]

tered for the plaintiff for the amount prayed for and certain costs. Execution was issued. On November 27, 1929, the plaintiff filed a notice of motion to quash the execution and to modify the judgment so as to include therein certain costs incident to the attachment proceedings. The motion was denied and on December 26, 1929, the plaintiff filed his notice of appeal to the superior court. Thereafter the defendant in said action, petitioner herein, moved to dismiss the appeal on the ground that the same had not been taken within the time prescribed by section 974 of the Code of Civil Procedure. This motion was denied and the plaintiff then moved the court to set the cause for trial

de nova;

whereupon the present proceeding was commenced by the defendant in said action and an alternative writ of prohibition issued.

It is undisputed that notice in writing of the rendition of judgment was not given to the parties or either of them by the justice as required by section 893 of the Code of Civil Procedure. The appeal was therefore taken in time unless the notice of the rendition of the judgment was waived by the appellant. „

It is the rule that in order to deprive a party of his right to written notice of the entry of judgment “there must be facts of record clearly indicating a waiver of such notice.”

(Hughes Mfg. Co.

v.

Elliott,

167 Cal. 494 [140 Pac. 17, 18].) A motion presented to the court by a party who thereby seeks to protect himself against an entered judgment has been held to import knowledge of such entry and to clearly establish a waiver.

(Peterson

v.

Superior Court,

30 Cal. App. 466 [158 Pac. 547];