Eckard v. Superior Court

SHENK, J.

This is a petition for a writ of mandate to compel the superior court in and for the county of Los Angeles to enter an order dismissing an appeal from the justice’s court in an action wherein the petitioner is plaintiff and Everett P. Wilson and Juanita Wilson are defendants.

The plaintiff in said action obtained a judgment against the defendants therein in the sum of two hundred dollars and costs. The defendant, Juanita Wilson, appealed therefrom. The papers in connection with the appeal were filed with the clerk of the superior court on March 13, 1923. On July 31, 1923, the superior court entered an order setting the case for trial

de novo

on June 2, 1924. On application of the appellant, but over the objection and against the protest of the plaintiff, the court continued the trial of the case to September 23, 1924. On September 17, 1924, the plaintiff served and filed a notice of motion to dismiss the appeal on the ground that the appellant had failed and neglected to bring her appeal to trial within one year from the date of the filing of the notice of appeal in the superior court as required by section 981a of the Code of Civil Procedure. Said motion was based on the papers, records, and files in said action and on an affidavit which disclosed that no written stipulation had been entered into and filed with the clerk of the superior court extending the time of trial beyond the statutory period. On September 22, 1924, the court granted the motion and entered an order dismissing the appeal. Thereafter the court on motion of the appel

[475]

lant, duly noticed, made, and entered an order setting aside its order dismissing the appeal and a further order refusing to dismiss the appeal. The present proceeding followed. It is admitted that the petition states all of the facts material to the controversy. One of those facts is that no written stipulation as required by section 981a of the Code of Civil Procedure was entered into between the parties and filed with the clerk of the superior court. The section of the code referred to provides that: “No action heretofore or hereafter appealed from the justice court to the superior court, shall be further prosecuted, and no further proceedings shall be had therein, and all such actions heretofore, or hereafter appealed, must be dismissed by the court to which the same shall have been appealed, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in the 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; provided, however, that in any appeal pending when this section takes effect, a judgment or dismissal shall not be entered under the direction hereof sooner than January first, 1924; ...”