250 P. 686 | Cal. Ct. App. | 1926
The petition alleges that E.M. Ragan commenced an action against petitioner in a justice's court and had judgment; that petitioner then prosecuted an appeal to respondent court; and that the appeal was dismissed by respondent court, about two months after it was perfected, because of a noncompliance with one of respondent's rules of court. [1] The rule in question was attempted to be adopted in 1921, and provided that an appeal might be dismissed for a failure to prosecute it or for unnecessary delay in bringing it to a hearing; that upon the failure of the appellant to have the cause placed upon the trial calendar within thirty days after the receipt by the clerk of the papers necessary to perfect the appeal the respondent might pay the clerk's costs, have the cause placed on the trial calendar, and, after notice, have the appeal dismissed; and that a failure to have an appeal placed on the calendar within the thirty days specified would be deemed a "failure to prosecute" as that expression is employed in the early part of the rule. The petition asks for the writ of mandate to compel respondent court "to reinstate said appeal and try said action." We issued the alternative writ. The return is by general demurrer.
Petitioner contends that the attempted dismissal of the appeal was ineffective and that the rule of court was void under the decision in Kraker v. Superior Court,
Section 981a provides, in effect, that an appeal from a justice's court must be dismissed if the "appealing party fails to bring such appeal to trial within one year" from the date of filing the appeal (Middlebrook v. Superior Court,
The question to be decided is whether the rule of respondent court, "adopted" long before section 981a became a law, was made effective upon the passage of that enactment, granting that it was invalid before that time for the reason that it penalized an appealing defendant for his failure to press an appealed cause for trial. The proviso in the section is designed, principally, to permit superior courts, by rule, to provide for dismissals after the lapse of a time less than the year contemplated by the section, but we think there is shown in the enactment a plain legislative intent to authorize rules providing for dismissals where appealing defendants do not bring causes on for trial, conceding that such a rule would have been inoperative before the passage of the section under the decision in Kraker v.Superior Court to the effect that a certain order was invalid. The earlier part of section 981a, as quoted above, fastens upon the appealing defendant the duty to force an appealed action to trial, and it must be that by the proviso contained in the section the legislature intended not only to authorize superior courts to provide by rule for dismissals within a period less than a year, but to allow them to base a provision for such dismissals upon the very dereliction denounced by the statute itself — the failure of an appealing defendant to bring forward the appealed cause for trial. Such a view seems necessary in order to make the proviso completely effective and to fit rules of court to the general purpose of the statute. *653
Petitioner contends that the rule of respondent court was not, at the time of the passage of section 981a, an "existing rule," as that term is employed in the proviso contained in the enactment, for the reason that it was at that moment, and had been ever since its attempted adoption, invalid under the law as stated in Kraker v. Superior Court. We think this ground is not tenable. It is obvious that the section was intended to breathe life into something that had not before its passage a legal existence. The phrase "existing rule" plainly was not intended, as it seems to us, to contemplate a rule that was legally operative. A rule that was fully available for use, one that had not the decision in Kraker v. Superior Court, for instance, standing in its way, needed not the mandate of the legislature to give it life. We think the proviso contemplated rules which the courts had gone through the motions of adopting — rules which had an apparent existence on paper, but which were ineffective for want of legal authority for their existence. As section 981a removed the very ground of objection which petitioner founds upon Kraker v. Superior Court, we think the proviso contained in it operated to make the "rule" of respondent court operative. The fact that Kraker v. Superior Court was decided long before the rule was "adopted" has no effect upon these views. That case did not make the law, but merely declared it. The situation, so far as the invalidity of the rule of court before the passage of section 981a is concerned, would have been the same if Kraker v. Superior Court had been decided between 1921 and 1923, instead of in 1911, or if it had never been decided. The rule of law announced in the decision, if it stood in the way of the rule of court at all, did so because it was a continuing rule of law, not because it was stated by the court in a particular case. If it, or other rules of law, operated forever to throttle rules of court which were attempted to be adopted before 1923, we do not perceive how the phrase "existing rule," in the proviso contained in section 981a, could have had any application or could have performed a useful purpose. Under such a view there could be no rule of court to which the expression "existing rule" could attach.
Petitioner cites Hanson v. McCue,
Petitioner contends that the proviso applies especially to respondent court and that it is therefore invalid as special legislation. The point is without merit. Section 981a, in its entirety, applies to superior courts generally.
Demurrer sustained. The alternative writ of mandate is vacated and a peremptory writ is denied.
Craig, J., and Thompson, J., concurred.