Goldie v. Superior Court

MARKS, J. This is an original proceeding instituted here for the purpose of requiring the respondent judge to vacate an order made by him transferring the case of Joseph Goldie v. J. E. Chilberg to the Justice’s Court of San Diego Township and commanding him to proceed with the trial of that action in the superior court.

The action in. question was instituted in the Justice’s Court of San Diego Township on May 17, 1933, and sought to recover judgment in the sum of $1304 on two promissory notes. Summons was served on defendant on April 3, 1935. On April 29, 1935, Goldie filed his notice of a motion to transfer [13]the action from the justice’s to the superior court. The motion was granted on May 3, 1935, and the case was transferred. The ease came on for trial in the superior court on October 17, 1935, at which time Chilberg moved for a dismissal of the action on the ground of lack of jurisdiction in the superior court. On November 21, 1935, the respondent judge ordered the ease transferred to the justice’s court. This is the order under attack here. The promissory notes in suit in the case of Goldie v. Chilberg were dated May 25, 1928, and became due and payable May 25, 1929.

Petitioner urges two reasons for the issuance of the peremptory writ: (1) Does section 396 of the Code of Civil Procedure, as amended in 1933 and again in 1935, operate retrospectively, and, (2) Does the filing of an action in a court lacking jurisdiction over the subject-matter toll the running of the statute of limitations?

The Justice’s Court of San Diego Township was at the commencement of the action and is now a class A justice’s court with jurisdiction of actions at law to recover money in a sum not in excess of $1,000. (Sec. 112, Code Civ. Proc., as variously amended; Stats. 1931, p. 409; Stats. 1933, chap. 743; Stats. 1935, chap. 74.) Petitioner does not contend that the justice’s court ever had jurisdiction of the action but maintains that as the amendments of 1933 and 1935 were procedural only, that court had power to transfer the cause to the superior court under authority there given it. As the amendment of 1935 did not become effective until more than four months after the transfer was made, the authority to make such a transfer must be found, if at all, in the 1933 amendment. The 1935 amendment did not purport to attempt to ratify any prior transfer of a case rightly or wrongly made by a court, but merely gave a present and future power to transfer a case under circumstances there specified.