Boghosian v. Superior Court

KNIGHT, J. The superior court denied petitioner’s motion to dismiss a justice’s court appeal, and thereupon proceeded to hear and determine anew the subject matter of the appeal. Petitioner now seeks through this proceeding in certiorari to have annulled the order so denying his motion to dismiss and all proceedings had subsequent thereto. The jurisdictional issue involved relates to the question of the [93]legal sufficiency of the record upon which the appeal was heard and determined.

The following are the material facts: In July, 1942, petitioner brought an action in the justice’s court against A1 Scott to recover the principal and interest claimed to be due on a promissory note dated February 4, 1930, and payable 45 days after date. Scott failed to appear or answer, and in August, 1942, a default judgment was entered against him. In November, 1942, he moved to vacate the judgment upon the ground that he had not been served with summons; the motion was heard on conflicting affidavits, and on December 30, 1942, was denied. Thereafter he presented a second motion to vacate the judgment. It was made pursuant to the provisions of section 473 of the Code of Civil Procedure on the grounds of mistake, inadvertence, surprise and excusable neglect; and attached to the notice of motion was a proposed answer which Scott asked leave to file. This motion also was heard on conflicting affidavits, and on March 3, 1943, was denied. Scott gave notice of appeal from the order of December 30, 1942, and from the order of March 3, 1943. The notice stated: “This appeal ... is taken on questions of bóth law and fact.” No statement of the case was presented to the justice for settlement, but in due course and on April 9, 1943, the clerk of the justice’s court transmitted to and filed in the superior court the complete file in the action, which included all of the papers required by section 977 of the Code of Civil Procedure to be transmitted to the superior court on an appeal taken either on questions of law alone or of law and fact. Thereafter and on October 14, 1943, petitioner moved the superior court to dismiss the appeal. Among the grounds urged therefor were that the appeal from the order of December 30, 1942, was not taken within the time prescribed by law; and that in the absence of any statement of the case prepared and settled in conformity with sections 975 and 977 of the Code of Civil Procedure the superior court was without jurisdiction to consider or determine the appeal from either order. The superior court granted the motion insofar as it related to the order of December 30, 1942; but it denied the motion insofar as it was directed against the order of March '3, 1943, “on the ground that the appeal is one on questions of law and fact and no statement of the case, as provided by section 975 of .the Code of Civil Procedure,