Lewis v. Superior Court

MARKS, J. —This is an original proceeding wherein petitioner seeks a writ of prohibition prohibiting the respondent court from proceeding with the trial of the ease of Lewis v. Nodoz Laboratories, Inc., et al., for the reason that the respondent court acquired no jurisdiction of that ease.

[341]On April 1, 1936, the Justice’s Court of San Bernardino Township entered judgment in the case of Lewis v. Nodoz Laboratories, Inc., et al., in favor of plaintiff and against the defendants L. George Counter and Walter 0. Treanor. On the same day the clerk of the justice’s court mailed notices of the entry of judgment to the attorneys for the respective parties addressed to their respective offices. The attorneys for defendants had their offices in the city of Los Angeles which is less than one hundred miles from the city of San Bernardino where the notices Avere mailed. Notice of appeal of defendant Treanor was filed in the office of the clerk of the justice’s court on May 4, 1936. The clerk of the Superior Court filed the record on appeal on May 15, 1936. On July 27, on September 21, 1936, and on April 26, 1937, Lewis made successive motions to dismiss the appeal on the ground that the Superior Court had no jurisdiction of the action because the notice of appeal was filed too late. All of these motions were denied. We may assume that during the hearings of the motions made on July 27, and September 21, 1936, no proper proof was made before the Superior Court of service of notice of the entry of judgment in the justice's court. On April 26, 1937, this proof, was furnished by an affidavit of mailing made by the clerk of the justice’s court and by the docket of the justice of the peace.

The foregoing facts are not seriously controverted in the answer of respondents. It is admitted that the attorneys in Los Angeles actually received the notice of entry of judgment on April 3, 1936. While the answer denies, for lack of information or belief, the allegations of the petition that the notice Avas mailed by the clerk in San Bernardino on April 1, 1936, the affidavit of mailing by the clerk is not controverted and must be considered admitted. The answer alleges that the notice of appeal with a sufficient undertaking on appeal and the necessary costs were actually mailed in Los Angeles on April 30, 1936, but owing to some fault (probably insufficient postage) were not delivered and filed until May. 4, 1936. May 3d fell on Sunday.

Section 974 of the Code of Civil Procedure provides that appeals are taken to the superior court “at any time within thirty days after notice of the rendition of the judgment . . . by filing a notice of appeal with the justice or judge ...”