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

The appeal from the judgment was taken in this case by filing with the clerk on February 9, 1933, the notice of appeal as provided by section 984 of the Code of Civil Procedure. Tyrrell v. Baldwin, 72 Cal. 192, 13 P. 475. This was then the method of taking an appeal from a justice's court in Stockton township from which this cause emanated, which township has a population of more than 30,000 inhabitants, as provided by section 982a of the same code, which then read: “The provisions of this chapter shall not apply to justices' courts in cities, cities and counties, towns and judicial townships having a population of thirty thousand or more. Appeals from such last-mentioned courts shall be taken, heard and determined as provided in chapter four of this title relating to appeals from municipal courts.”

No bill of exceptions was settled or certified in this case as provided by section 988a of the Code of Civil Procedure, or at all. No application was ever presented by the appellant to the superior court of San Joaquin county to settle such a bill of exceptions pursuant to the provisions of the last-mentioned section. The bill of exceptions is not essentially a part of the procedure of taking an appeal. It is a mere method of preserving a record upon which the appellant relies for a reversal of the trial court's decision. It is only incident to the process of an appeal. The failure to procure the settlement of a bill of exceptions does not affect the statutory time within which an appeal may be taken, nor does it affect the mandatory provisions of section 981a of the Code of Civil Procedure with respect to the limitation of time within which a superior court may try a cause on appeal from the justice's court. June 5, 1933, section 982a, above quoted, was repealed (St. 1933, p. 1904), which provided that part 2, title 13, chapter 3, with relation to appeals from justices' courts, had no application in townships having a population of more than 30,000 inhabitants. This repeal became effective August 21, 1933, about six months after this appeal was taken. The repeal of this last-mentioned section gave full force and effect to section 981a, supra, which provides that: “No action heretofore or hereafter appealed from the justice court to the superior court, shall be further prosecuted, * * * where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in said superior court. * * *”

The exercise of diligence in bringing an appeal on for hearing is procedural in its nature, and while it is true that the last-mentioned section did not apply to this case at the time the appeal was taken, the repeal of section 982a, supra, made it applicable to this appeal, which was then pending, and required the appellant to bring the case on for hearing in the superior court within one year from the filing of the appeal. It will be observed that more than one year elapsed after the repeal of section 982a before the case was set for trial on March 18, 1935. The superior court therefore lost jurisdiction to try the cause, and it should have been dismissed on motion of the plaintiff. The petition for a writ of mandamus was properly directed to issue in this proceeding.

The petition for a rehearing is denied.

PER CURIAM.