Golden v. Stansbuby, Inc.

GRIFFIN, J. On September 27, 1956, a money judgment was rendered, on account of work performed by plaintiff for defendant, in the Justice Court of Bar stow Judicial Township, San Bernardino County, in favor of plaintiff. On October 11, 1956, a notice of appeal was filed by defendant in said justice court and a copy was served on plaintiff through his attorneys of record. No notice of rendition of judgment was served or filed. On November 5, 1956, counsel for defendant received a letter from the clerk of said justice court reading in part:

[481]“I have all the papers pertaining to the ease of John W. Golden vs Stansbury, Incorporated, ready to send to the County Clerk on your Appeal.

“At this time I am waiting for the $9.00 dollar filing fee that has to go with the papers, if you will send a cashiers cheek made out to the Clerk of the Superior Court, I will send it with the balance of the papers and not send it thru the trust fund.”

pursuant to said letter, counsel for defendant, on November 6, 1956, sent to the clerk of said justice court a cashier’s check for $9.00, payable to the clerk of the Superior Court of San Bernardino County. A letter dated November 9, 1956, was received by counsel for defendant from plaintiff’s counsel, reciting:

“I have been advised that you have recently paid the Superior Court filing fee in the appeal of the above cited decision.

“I have advised the Clerk of the Justice Court that the payment of this fee is not timely and that the appeal cannot proceed . . .

“If you still wish to have this appeal made to the Superior Court, please advise the Clerk of the Justice Court who, on my request, is holding the matter in suspense.”

Thereafter, counsel for defendant telephoned the clerk of the justice court and ordered the papers sent forward to the clerk of the superior court. She then forwarded the necessary papers and cashier’s check made payable to the clerk of the superior court. On November 16, the clerk of the justice court sent counsel for defendant a letter indicating that the county auditor’s office advised her the superior court could not accept a filing fee directly from counsel’s office, and it must go through the justice court office, into a trust fund, and then be transferred to the superior court. The clerk of the justice court admitted she was not acquainted with the proper procedure in this respect. The clerk of the superior court held the papers pending this transaction. Counsel for appellant then forwarded a money order for $10.00 covering necessary costs payable to the clerk of the justice court. The clerk of the justice court then forwarded the necessary fees to the clerk of the superior court. When they reached said superior court clerk it was more than 30 days after the filing of the notice of appeal. Thereafter, plaintiff filed in the superior court a notice of motion to dismiss the appeal on the ground the payment of the fee to