People ex rel. Waldon v. Elkins
Before: Rhodes
Synopsis
CERTIORARI to the County Court of Stanislaus County.
This case haying! been tried in the Justice’s Court and judgment rendered against him, the defendant appealed to the County Court of Stanislaus County. The case being called at the January term of said Court, both parties appeared by counsel, and the case was set for trial, on the first day of the March term of said Court, on which day the appellant by his counsel moved for a continuance, pending which motion without any previous notice, respondent’s counsel moved to dismiss the appeal on the grounds:
First — That there was no proof that a copy of the notice of appeal had never been served upon respondent or his counsel, and:
Second — That no copy of the Justice’s docket had been sent up.
Thereupon the Court made an order peremptorily dismissing the appeal, to which ruling the counsel for appellant excepted. The case now comes before this Court on certiorari, and the relator insists that the County Court in hearing and passing upon the motion to dismiss in the absence of proof that notice of said motion had .been given to the appellant, exceeded its authority, and that the order peremptorily dismissing the appeal was extra-judicial and void.
First — No notice bad been given appellant.
Second — The statute authorizing the Court to dismiss an appeal, does not authorize the dismissal upon the grounds stated in the motion.
Third — The record shows that appellant has complied with every provision of the statute, and has an absolute right to have his appeal heard and decided upon the merits.
As to the first objection, the statute provides that the provisions of the Civil Practice Act as to trials in the District Court shall be applicable to trials on appeal in the County Court, (and) for a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the County Court, after notice, may orden the appeal to be dismissed. (Civil Pr. Act, Sec. 367.)
Under this Section the Court derives its authority to dismiss an appeal, and it is dependent upon notice having been previously given by the moving party. The motion to dismiss is in the nature of an independent proceeding, and before the Court can entertain jurisdiction, the parties must be properly brought before it by notice; it is analagous to the appeal itself, unless notice of appeal is filed and served upon the opposite party, the Court cannot entertain jurisdiction of the appeal. (Whipley v. Mills, 9 Cal. 641.)
The notice of the motion should have been in writing; it was a legal proceeding, and it is well settled that a notice in a legal proceeding means a notice in writing. (Gilbert v. Columbia Turnpike Company, 3 John. 109; McEwen v. Montgomery County Mutual Insurance Company, 5 Hill. 104; Lane v. Caney, 19 Barb. 639; Pearsons. Lovejoy, 63 Barb. 411.)
Rhodes, C. J., delivered the opinion of the Court, Ceockett, J., and Wallace, J., concurring:
The writ of certiorari was issued, to bring up for review the proceedings of the County Court of Stanislaus County, in dismissing an appeal from a Justice’s Court. The appeal was dismissed on the motion of the respondent, on the ground that a certified copy of the Justice’s docket had not [647]been filed in the-County Court. The appellant objected to the hearing of the motion, because no notice had been served on him. The motion was filed the same day that the order was made, and no written notice of the motion was given. The petitioner’s position is, that the Court exceeded its jurisdiction in dismissing the appeal, because the motion was not served, and because the ground mentioned, is not a ground for the dismissal of an appeal.
A failure to produce in the County Court, a duly certified copy of the docket of the Justice of the Peace, is a failure to prosecute the appeal, within the meaning of Section 367, of the Code. And if that were not a proper cause for the dismissal of the appeal in.this case, the order in that respect would be erroneous, but not void. (Morley v. Elkins, 37 Cal. 454.)
On the point that the Court had no jurisdiction of the motion, unless it had been served, no authorities are cited by either party. The Court had acquired jurisdiction, both of the parties and of the subject matter of the action; and thereafter its orders, though they might be erroneous, would not be void, unless the statute has, in respect to the matter in question, prescribed a special mode of procedure and such mode has not been pursued. There is nothing of that character in relation to the dismissal of the appeal, in the sections of the statute regulating appeals to the County Courts. An appeal may be dismissed for the causes mentioned in the statute, “after notice.” The Court may err as to the kind or length of the notice, but if the appellant have notice in fact, it cannot be said that the order is void. The notice is not the means by which jurisdiction was obtained, for that had already been acquired. The writ will not lie to an inferior Court, to annul an order which is merely erroneous but not void, in a matter of which such Court has acquired jurisdiction.
Writ dismissed,
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