ESTRIN v. SUPERIOR COURT IN AND FOR SACRAMENTO COUNTY

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District Court of Appeal, Third District, California.

ESTRIN v. SUPERIOR COURT IN AND FOR SACRAMENTO COUNTY et al.*

Civ. 6256

Decided: June 23, 1939

Busick & Busick, of Sacramento, for petitioner. Robert H. Schwab, of Sacramento, and Richard S. Goldman, of San Francisco, for respondents.

The petitioner seeks to review the findings and judgment of the Superior Court of Sacramento County on the alleged ground that the court exceeded its jurisdiction in determining an appeal from a justice's court upon the theory of a reasonable value of services performed in installing an electric sign, while the sole issue which was tendered by the pleadings was based on a written contract.

The writ of certiorari was issued and made returnable April 24, 1939. It directed the certifying and return of the proceedings of the trial court, pursuant to sections 1070 and 1071 of the Code of Civil Procedure. No certified transcript has been filed with this court. The proceedings of the trial court are not before us. On the return day the respondents appeared and moved to dismiss the proceeding, and at the same time filed a demurrer to the petition on the ground that it fails to state facts sufficient to constitute a cause of action. Both the demurrer and the motion to dismiss were presented together.

The petition sets out the amended complaint in the action, which was couched in two counts. The first cause alleges that the Novelty Electric Sign Company agreed in writing to construct and furnish this petitioner with a neon electric sign for the sum of $556.20, which contract was fully performed, and that no part of said indebtedness has been paid. The second cause alleges that the company subsequently performed other services for this petitioner at his special request of the reasonable value of $125, no part of which has been paid. The complaint asked judgment for $681.20. Upon appeal from a judgment which was first rendered in the justice's court, the superior court found that “plaintiff (Novelty Electric Sign Company) agreed to construct” the sign; that it did actually do so and according to agreement continued to service the sign for a period of one year after its installation. The court then found that the value of the “construction” of the sign and services rendered was $517.20, and rendered judgment for that amount. This petition for certiorari was then filed.

We are of the opinion the motion to dismiss this proceeding should be granted for the reason that no certified transcript of the proceedings of the trial court has been filed as required by section 1071 of the Code of Civil Procedure. Without that transcript we are unable to review the proceedings of the trial court, to determine whether the findings and judgment are within the issues which were tried.

It has been determined that it is the duty of the “prosecutor of a writ of certiorari” to use due diligence to see that the certificate of transcript required by section 1071 is filed, and that for failure to do so the proceeding for review should be dismissed. Warren v. Superior Court, 144 Cal. 287, 77 P. 910; The I.X.L. Lime Co. v. Superior Court, 143 Cal. 170, 175, 76 P. 973; Goodrich v. Superior Court, 92 Cal.App. 695, 268 P. 669. The I.X.L. Lime Company case states [143 Cal. 170, 76 P. 975]: “It is incumbent upon the prosecutor of the writ * to see that the return is made, to invoke the aid of the court to compel compliance with the mandate of the writ, and to use due diligence in having a complete record made out, and that his proceeding will be dismissed if he fails to use diligence in the prosecution thereof.”

In the Goodrich case, supra, it is said [92 Cal.App. 695, 268 P. 670]: “The petition having become ‘functus officio’ upon the issuance of the writ herein, we cannot rest our review upon any of the allegations found therein (Donovan v. Police Commrs., 32 Cal.App. 392, 397, 163 P. 69), but we are limited to a review of the properly authenticated record of the proceedings themselves.”

For the reasons assigned, this proceeding is hereby dismissed.

On Petition for Rehearing.

On petition for rehearing our attention is called to the fact that petitioner did object at the trial to evidence of the reasonable value of the construction of the neon sign in question. Reference in our opinion to the presumption in support of the judgment that the issue of quantum meruit was tendered at the trial by consent of respective counsel is therefore inapplicable to the record of this proceeding for certiorari.

For the reason that a certified transcript of the proceedings of the trial court was not filed in this court as required by law, the petition for a writ of certiorari was properly dismissed. The petition for a rehearing is denied.

Mr. Justice THOMPSON delivered the opinion of the Court.

We concur: PULLEN, P.J.; TUTTLE, J.