Miller v. Superior Court

ADAMS, P. J. Petition for writ of review.

On January 21, 1942, an action was begun in the Justice’s Court of Colusa Judicial Township, County of Colusa, by Elizabeth Sartain, seeking to recover from E. Vayne Miller the sum of $164.50 and costs. Defendant demurred to the complaint, but the demurrer was overruled and he was given ten days to answer. On his failure to answer within the time allowed, his default was entered on April 2, and judgment rendered for plaintiff in the sum of $169.50. On April 4, defendant filed an answer in form of a general denial, and on April 11, he filed notice of motion to set aside the judgment, “upon the grounds of defendants or employees inadvertence, surprise, mistake and excusable neglect,” his affidavit being attached thereto. Upon hearing, the motion was denied. On April 14, defendant filed notice of appeal to the Superior Court of Colusa County, from the judgment, and in particular, from the order of the justice’s court denying his motion to set aside the default. The appeal was asserted to be taken on questions of both law and fact. No statement of the ease accompanied same, but on May 1, a purported statement was filed in the superior court, reading:

“That a complaint and summons was filed in the Justices [128]Court of the Colusa Judicial Township and was thereafter served on Defendant and his time to appear was March 31st 1942, and that his answer actually arrived from Los Angeles on about the 2nd or 1st day of April 1942 and default judgment was entered against Defendant on or about the 1st day of April 1942 and that on or about the 11th day of April 1942 that Defendant did move to set said judgment aside on the grounds set forth in Section 473 C. C. P. and that Justice of Peace denied said motion and that Defendant did appeal from said judgment and order denying said motion to the above entitled court. ’ ’

There is no evidence that said statement was filed with, or settled by, the justice, or'that it was ever served upon the adverse party.

On May 18, plaintiff served and filed notice of motion to dismiss defendant’s appeal, on the grounds that the judgment being a default judgment was not appealable and that the appeal from the order denying motion to set aside default, being an order made after judgment, must be on questions of law alone, and that appellant did not properly perfect his appeal, since no statement of the ease was served or filed as required by section 975 of the Code of Civil Procedure. Motion to dismiss was heard by the superior court, and after argument by counsel an order was made and entered dismissing said appeal.