Fraser v. Superior Court

VALLÉE, J. Prohibition is sought to restrain further proceedings by respondent court in an action pending therein in which petitioners are the plaintiffs, and Harold H. Bennetto and Bernadette M. Bennetto, husband and wife, are the defendants. The action now pending in the superior court was begun in the justice court, and a judgment was rendered therein in favor of the plaintiffs against Bernadette M. Bennetto, and in favor of Harold H. Bennetto against plaintiffs. The same attorneys appeared for Bernadette and Harold in the justice court. Within the time allowed by law, Bernadette filed a notice of appeal from the judgment. The notice of appeal was directed to the justice, to the plaintiffs, and to their attorneys. She served a copy of the notice of appeal on the attorney for the plaintiffs, but did not serve a copy of the notice, or any notice of the appeal, on Harold. The appeal was taken on questions of both law and fact.

When the cause came on for trial in the superior court, plaintiffs, petitioners here, moved the court to dismiss the appeal on the ground section 974 of the Code of Civil Procedure had not been complied with since Harold was an adverse party on the appeal; that he had not been served with the notice of appeal, and that therefore the superior court was without jurisdiction of the appeal. The attorneys ap[695]pearing for Bernadette (the same attorneys who had appeared for Bernadette and. Harold in the justice court), over objection of the plaintiffs, were permitted to file a document which read; “Appearance of Harold Bennetto: Harold Bennetto hereby appears, by his attorneys, Hahn, Ross & Saunders, in the above entitled matter, for all purposes, and waives all notice of proceedings in the above matter. Dated November 26th, 1952. Hahn, Ross & Saunders By Saul Ross. ’ ’ Harold was then present in the superior court and Mr. Ross stated that he (Harold) would waive notice of the appeal. Although the court ruled that the proceeding was a trial de novo in the superior court, the motion was denied.

Petitioners contend the superior court did not acquire jurisdiction of the appeal by reason of the failure to serve Harold. We have concluded the contention must be sustained.

Section 974 of the Code of Civil Procedure reads; “Any party dissatisfied with the judgment rendered in a civil action in a police or justice’s court, may appeal therefrom to the superior court of the county, at any time within thirty days after notice of the rendition of the judgment. The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether- the appeal is taken on questions of law or fact or both. ’ ’ (Italics added.) Section 976 reads; “When a party appeals to the superior court on questions of fact, or on questions of both law and fact, no statement need be made, but the action or hearing on the order made after judgment must be tried or heard anew in the superior court.” Section 980a reads: “When the action is tried anew or the application for an order is heard anew on appeal the trial or hearing must be conducted in all respects as other trials or hearings in the superior court. . . .”