Stansbury, Inc. v. Superior Court

GIBSON, C. J. The sole question raised in this proceeding is whether an appeal from a justice court to the superior court was subject to dismissal for failure to pay the required fees in the manner and within the time prescribed by law.

Petitioner was the defendant in a justice court action in which judgment was awarded in favor of the plaintiff, who is the real party in interest in this proceeding. No notice of rendition of judgment was served or filed, but on October 11, 1956, defendant filed a notice of appeal to the superior court. On November 5, defendant received a letter from the clerk of the justice court which, after reciting that the papers in the case were ready to be sent to the county clerk, stated, “I am waiting for the $9.00 filing fee that has to go with the papers, if you will send a cashiers cheek made out to the Clerk of the Superior Court, I will send it with the balance of the papers and not send it thru the trust fund.” Pursuant to this request, defendant sent a cashier’s cheek for $9.00 payable to the clerk of the superior court. This check was received by the justice court clerk on November 7 and thereafter forwarded to the superior court.

On November 16, defendant received a letter in which the clerk of the justice court stated that she had been informed by the county auditor that the superior court could not accept the filing fee direct from defendant’s attorney and that it would have to be sent through the justice court and deposited in a trust fund and then be transferred to the superior court. The letter further stated that the justice court clerk should [82]have charged a transfer fee of $1.00 and that if defendant would mail a money order for $10 the clerk would keep $1.00 for the justice court transfer fee and send the balance to the superior court clerk. Defendant immediately complied with these instructions by forwarding a money order in the amount of $10 payable to the justice court clerk.1

On motion of plaintiff the superior court dismissed the appeal, and defendant commenced this proceeding in mandamus to compel the superior court to entertain the appeal.

Section 981 of the Code of Civil Procedure provides that no such appeal shall be effectual for any purpose unless the appellant, at the time of filing the notice of appeal, pays the fee payable to the judge of the justice court and the fees provided to be paid to the county clerk, and that no notice of appeal shall be filed unless such fees are paid in accordance with the provisions of this section.2