Swim v. Superior Court

MYERS, C. J. The petition herein is entitled “Petition for a Writ of Mandate,” hut the prayer thereof is, in substance, for a writ of review. The writ which was issued by us at petitioner’s request was in effect a writ of review, though entitled writ of mandate, and in response to it the *541 record of the lower court has been certified to. us. The facts are as follows: The petitioner herein recovered a judgment in the justice’s court of the city and county of San Francisco, January 16, 1922, against one S. L. Mash, defendant, amounting to $92.93. The defendant perfected an appeal to the superior court of the city and county of San Francisco which was filed therein February 15, 1922. On January 25, 1924, nearly two years thereafter, after due notice given, the petitioner moved the latter court to dismiss said appeal on the ground that the appellant had failed to bring such appeal to trial within one year of the date of filing thereof in the superior court. This motion was based upon section 981a of the Code of Civil Procedure, a new section added thereto in 1923 (Stats. 1923, p. 755), which provides as follows: “No action heretofore or hereafter appealed from the justice court to the superior court, shall be further prosecuted, and no further proceedings shall be had therein, and all such actions heretofore, or hereafter appealed must be dismissed by the court to which the same shall have been appealed, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, 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, unless such time be otherwise extended by a written stipulation by the parties to the action filed with the clerk of the superior court to which the appeal is taken; provided, however, that in any appeal pending when this section takes effect, a judgment or dismissal shall not be entered under the direction hereof sooner than January first, 1924; and provided, further, that any superior court may, by existing rule or by rule hereafter to be enacted, provide for dismissal of such appeal within a time less than one year.” The motion was supported by the affidavit of the plaintiff to the effect that he had not entered into any written or other stipulation extending the time for bringing such appeal on for trial and that no such stipulation had been filed with the clerk of said superior court. Thereupon the defendant, appellant herein, served and filed a counter-motion to set said case for trial, supporting the same by an affidavit, the material portions of which are as follows: *542 “That on or about the 15 day of April, 1922, made an agreement with the plaintiff, Meurice Swim, attorney in propria persona, wherein it was agreed that no further legal proceedings be taken on the part of the plaintiff Meurice Swim, and the defendant S. L. Mash, herein and that the defendant S. L. Mash, endeavor to see the defendant Ralph Phillips who had contracted the debt and for whom the services so rendered and performed for the indebtedness claimed by the plaintiff and for whose use and benefit said services had been performed. He the said Ralph Phillips having before confessed judgment for the same and thereby agreeing to pay the same if given an opportunity to do so. “In line with the above mentioned and described agreement the said defendant S. L. Mash saw the said defendant Ralph Phillips and he agreed to pay off the said bill at the rate of two dollars and one half ($2.50) per week and the said defendant so informed the said plaintiff and attorney propria persona herein and the said plaintiff informed the said defendant S. L. Mash that the said terms of the agreement so made by the said Ralph Phillips was satisfactory and that he the said plaintiff would take up the matter with the said Ralph Phillips one of the def. herein. “Thereon, this Defendant S. L„ Marsh was led to believe that the said account and debt had been paid by the said defendant Ralph Phillips, and in line with above agreement by the defendant S. L. Mash with the plaintiff Meurice Swim, the above cause of action was not set for trial by the defendant S. L. Mash.” Petitioner’s motion to dismiss said appeal came on regularly for hearing in said superior court and was by said court denied. Thereupon petitioner filed in this court the petition herein. The facts alleged in defendant’s affidavit above quoted amount to nothing more than an assertion that a verbal stipulation was entered into by and between the parties to the effect that further proceedings in the action should be indefinitely postponed. All of these alleged facts were contradicted in a counter-affidavit filed by the plaintiff in said action, but for the purposes hereof the allegations of defendant’s affidavit must be taken as true. In the face of the plain and unambiguous language used in the code section above quoted, clearly evi *543 dencing the legislative intent to require a written stipulation filed with the clerk of the superior court for the purpose of extending the time for bringing the case to trial, we cannot say that a verbal stipulation should be permitted to answer the same purpose. The situation thus presented is substantially analogous to that which was before-this cofirt in the recent cases reported under the title of Miller & Lux v. Superior Court, 192 Cal. 333 [219 Pac. 1006], We are of the opinion that under the rule and reasoning of that case it was the duty of the respondent court to grant petitioner’s motion for a dismissal of the appeal. Evidently that case was not called to the attention of the respondent judge as it has not been cited in either of the briefs herein. Assuming, without deciding, that the appellant might be permitted to invoke the doctrine of estoppel as against the plain language of the code section as the basis for a contention that the respondent had waived his right to insist upon a dismissal pursuant thereto, we are satisfied that said defense is not available to him herein. He must be assumed to have entered into the agreement with the plaintiff with the knowledge of the statutory provision which required nothing less than a written stipulation to protect bim from the liability to a dismissal. He is chargeable also with knowledge of the fact that the promise of the said Phillips was not a legally sufficient consideration to support the agreement of the plaintiff to take no further proceedings, for the reason that Phillips promised nothing more than that which he was then legally obligated to do. (Civ. Code, sec. 1605.) Moreover, if the said promise on the part of Phillips, had been performed, the judgment would have been fully satisfied thereby within a period of twenty-seven weeks, thus leaving to the appellant, in the event of the nonperformance thereof, an ample margin of time thereafter within which to protect his own rights by bringing his appeal to trial. Notwithstanding this, appellant sat idly by for nearly one hundred weeks thereafter without making any effort to ascertain whether or not the judgment had in fact been paid. As was noted above, the prayer of the petition herein is, in effect, for what amounts to a writ of review. But we now have before us the petition, the answer, and the complete record in the case below in so *544 far as relates to the point involved herein. Under these circumstances there is no reason why we should not give such relief as the record so presented will warrant. (Traffic Truck Sales Co. v. Justice’s Court, 192 Cal. 377 [220 Pac. 306]; Van Hoosear v. Railroad Com., 189 Cal. 228, 236 [207 Pac. 903].) We are of the opinion that the order made by the respondent court denying petitioner’s motion to dismiss the appeal should be annulled and that a writ of mandate should issue requiring the respondent court to make and enter an order in said action dismissing said appeal. It is so ordered. Lennon, J., Lawlor, J., Waste, J., Seawell, J., Shenk, J., and Richards, J., concurred.