Nowack v. Superior Court

NOURSE, P. J. Petitioner seeks a writ of mandamus requiring the respondent to dismiss an appeal from a judgment of the justice’s court. The facts are not in dispute upon any material matter. On January 26, 1938, petitioner as plaintiff commenced an action in the justice’s court against Barbara H. Clark to recover damages for injuries to personal property. He recovered judgment for $80.56 from which the defendant appealed on Febuary 27, 1939. Upon motion of the appellant said cause was set for trial on July 6, 1939, before the respondent court, and, after numerous continuances, was dropped from the calendar by order of said court. On January 26, 1940, counsel for defendant and appellant had the cause again set for trial for February 13, 1940. Prior to said date, upon request of counsel for defendant and appellant, the parties stipulated in writing that the trial should be continued until February 26, 1940. On the latter day counsel for both parties met in another department of the superior court and, it appearing that February 26th was a day set aside for the hearing of law and motion matters, the respondent asserts that they orally agreed to continue the trial for two weeks and counsel for defendant and appellant notified the clerk of the department in which said case was pending that said cause should be marked continued for two weeks upon agreement of counsel. This oral agreement is disputed by counsel for petitioner herein. The cause was not tried on February 26, 1940, nor within two weeks thereafter and on April 1, 1940, the respondent therein and petitioner here presented his motion to dismiss the appeal because of the appellant’s failure to bring the cause for trial within one year from the date of filing notice of appeal. [638]This motion was denied after a hearing which disclosed no other facts material to this proceeding.

It should be noted at this point that the time within which the appeal should have been heard expired February 27, 1940; that the written stipulation extended the time of trial to February 26th, which was within that period; that no written stipulation was made continuing the time beyond the statutory period; and that the disputed oral stipulation agreeing to a continuance of two weeks was not complied with by the appellant.

The rules of law controlling the decision herein are not open to further controversy. The statute applicable, section 981a of the Code of Civil Procedure, reads.- “No action or order 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 or orders 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;