ROSSI v. SUPERIOR COURT IN AND FOR SAN JOAQUIN COUNTY (1935)

District Court of Appeal, Third District, California.

ROSSI v. SUPERIOR COURT, IN AND FOR SAN JOAQUIN COUNTY.

Civ. 5410.

Decided: May 21, 1935

Nutter & Rutherford, D. R. Jacobs, and Stephen Dietrich, all of Stockton, for petitioner. Lafayette J. Smallpage and Charles H. Epperson, both of Stockton, for respondent.

This is a petition for a writ of prohibition to restrain the superior court of San Joaquin county from proceeding to try a case on appeal from the justice's court of Stockton township, on the ground that the superior court is without jurisdiction to do so, for the reason that more than one year has elapsed since the appeal was perfected, and that no stipulation extending the time of trial was filed therein.

This proceeding involves the same appeal in which this court has this day filed its opinion (45 P.(2d) 376) directing the issuing of a peremptory writ of mandamus instructing the superior court of San Joaquin county to dismiss the action for the reason that it is without jurisdiction to try the cause as provided by section 981a of the Code of Civil Procedure. Mandamus is a proper remedy to enforce the provisions of this statute, and this petition for a writ of prohibition is therefore functus officio.

The petition for a writ of prohibition is dismissed.

Mr. Justice THOMPSON delivered the opinion of the court.

I concur: PULLEN, P. J.

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