Golden v. Stansbury, Inc.

• Decision Date: 22 November 1957
• Citation: 318 P.2d 134,155 Cal.App.2d 480
• Court: California Court of Appeals Court of Appeals
• Parties: John W. GOLDEN, doing business as Equipment Service Company, Plaintiff and Respondent, v. STANSBURY, Incorporated, Defendant and Appellant. Civ. 5704.

Page 134

318 P.2d 134

155 Cal.App.2d 480

John W. GOLDEN, doing business as Equipment Service Company, Plaintiff and Respondent, v. STANSBURY, Incorporated, Defendant and Appellant.

Civ. 5704.

District Court of Appeal, Fourth District, California.

Nov. 22, 1957.

Ball, Hunt & Hart, Long Beach by Donald B. Caffray, Long Beach, for appellant.

Mahlum & DeBord, Barstow by T. L. DeBord, Barstow, for respondent.

GRIFFIN, Justice.

On September 27, 1956, a money judgment was rendered, on account of work performed by plaintiff for defendant, in the Justice Court of Barstow Judicial Township, San Bernardino County, in favor of plaintiff. On October 11, 1956, a notice of appeal was filed by defendant in said Justice Court and a copy was served on plaintiff through his attorneys of record. No notice of rendition of judgment was served or filed. On November 5, 1956, counsel for defendant received a letter from the clerk of said Justice Court reading in part:

'I have all the papers pertaining to the case of John W. Golden vs. Stansbury, Incorporated, ready to send to the County Clerk on your Appeal.

'At this time I am waiting for the $9.00 dollar filing fee that has to go with the papers, if you will send a cashiers check made out to the Clerk of the Superior Court, I will send it with the balance of the papers and not send it thru the trust fund.'

Pursuant to said letter, counsel for defendant, on November 6, 1956, sent to the clerk of said Justice Court a cashier's check for $9, payable to the clerk of the Superior Court of San Bernardino County. A letter dated November 9, 1956, was received by counsel for defendant from plaintiff's counsel, reciting:

'I have been advised that you have recently paid the Superior Court filing fee in the appeal of the above cited decision.

'I have advised the Clerk of the Justice Court that the payment of this fee is not timely and that the appeal cannot proceed * * *.

'If you still wish to have this appeal made to the Superior Court, please advise the Clerk of the Justice Court who, on my request, is holding the matter in suspense.'

Thereafter, counsel for defendant telephoned the clerk of the Justice Court and ordered the papers sent forward to the clerk of the Superior Court. She then forwarded the necessary papers and cashier's check made payable to the Clerk of the Superior Court. On November 16, the clerk of the Justice Court sent counsel for defendant a letter indicating that the County Auditor's office advised her the Superior Court could not accept a filing fee directly from counsel's office, and it must go through the Justice Court office, into a trust fund, and then be transferred to the Superior Court. The clerk of the Justice Court admitted she was not acquainted with the proper procedure in this respect. The clerk of the Superior Court held the papers pending this transaction. Counsel for appellant then forwarded a money order for $10 covering necessary costs payable to the clerk of the Justice Court. The clerk of the Justice Court then forwarded the necessary fees to the clerk of the Superior Court. When they reached said Superior Court clerk it was was more than 30 days after the filing of the notice of appeal. Thereafter, plaintiff filed in the Superior Court a notice of motion to dismiss the appeal on the ground the payment of the fee to the Superior Court was not timely. On January 21, 1957, the judge of the Superior Court held that the error of the Justice Court Clerk in demanding the wrong amount and in designating the wrong payee was an error not committed in the performance of a ministerial act and could not excuse defendant in perfecting its appeal by payment of the filing fee to the Superior Court within the time required by law. He relied upon sections 974 and 981 of the Code of Civil Procedure; Simmons v. Superior Court, 30 Cal.App. 252, 254, 157 P. 817; Johnson v. Superior Court, 28 Cal.App. 618, 153 P. 404; Bray v. Redman, 6 Cal. 287; and Gunn v. Superior Court, 73 Cal.App.2d 564, 567, 166 P.2d 906.

It is defendant's contention that the appeal was perfected when the clerk of the Justice Court received the $9 cashier's check payable to the Clerk of the Superior Court, on a day well within the 30-day limitation; that the Justice Court waived the additional transfer fee of $1 by failure to demand it; and that the appeal was perfected so as to vest jurisdiction in the Superior Court, and that such jurisdiction could not be lost by mere failure of the Justice Court Clerk to transmit the filing fees to the Clerk of the Superior Court, citing Pacific States Corporation v. Superior Court, 72 Cal.App. 241, 244, 236 P. 938; and ...