Swim v. Superior Court

MYERS, C. J.

The petition herein is entitled “Petition for a Writ of Mandate,” hut the prayer thereof is, in substance, for a writ of review. The writ which was issued

by

us at petitioner’s request was in effect a writ of review, though entitled writ of mandate, and in response to it the

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record of the lower court has been certified to. us. The facts are as follows: The petitioner herein recovered a judgment in the justice’s court of the city and county of San Francisco, January 16, 1922, against one S. L. Mash, defendant, amounting to $92.93. The defendant perfected an appeal to the superior court of the city and county of San Francisco which was filed therein February 15, 1922. On January 25, 1924, nearly two years thereafter, after due notice given, the petitioner moved the latter court to dismiss said appeal on the ground that the appellant had failed to bring such appeal to trial within one year of the date of filing thereof in the superior court. This motion was based upon section 981a of the Code of Civil Procedure, a new section added thereto in 1923 (Stats. 1923, p. 755), which provides as follows:

“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 said 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;

and provided, further,

that any superior court may, by existing rule or by rule hereafter to be enacted, provide for dismissal of such appeal within a time less than one year.”