Hinds v. Superior Court In and For Tehama County

• Decision Date: 13 December 1956
• Citation: 304 P.2d 778,146 Cal.App.2d 758
• Parties: Fred D. HINDS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF TEHAMA, Respondent. Civ. 9174.
• Court: California Court of Appeals Court of Appeals

Page 778

304 P.2d 778

146 Cal.App.2d 758

Fred D. HINDS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF TEHAMA, Respondent.

Civ. 9174.

District Court of Appeal, Third District, California.

Dec. 13, 1956.

William H. Phelps, Fall River Mills, for petitioner.

Pugh & Webster, Red Bluff, for real party in interest.

SCHOTTKY, Justice.

Petitioner filed in this court a petition for a writ of mandate commanding the Superior Court of Tehama County to set aside its order dismissing the appeal of petitioner in a case in which petitioner was seeking to appeal from a judgment of the Justice Court. We issued an alternative writ.

The factual situation, which is not in substantial dispute, is as follows:

Petitioner brought an action against Arthur L. Sharp in the Justice Court of the Red Bluff Judicial District, County of Tehama. Judgment was entered against Mr. Hinds on March 21, 1956. Notice of entry of judgment was filed on March 23, 1956. On April 21, 1956, petitioner's counsel who has his offices in Fall River Mills, in Shasta County, about 100 miles from Red Bluff, sent a letter to the judge of the justice court in which counsel requested the judge to file a notice of appeal which was enclosed. The letter also stated: 'Also enclosed please find my check for not over $15.00 to cover the costs on appeal.' The check had not been completed. The amount had not been filled in. Someome filled in the check for $1. On June 13, 1956, petitioner's counsel learned that the appeal had not been transferred to the superior court because the total costs on appeal had not been paid. These costs were then paid and the record transmitted. On August 27, 1956, a motion was made to dismiss the appeal on the ground that section 981 of the Code of Civil Procedure was not complied with. The section reads in part as follows:

'No appeal taken from a judgment rendered in a justice court in civil matters shall be effectual for any purpose whatever unless the appellant shall, at the time of filing the notice of appeal, pay in addition to the fee payable to the judge of the justice court on appeal, the fees provided by law to be paid to the county clerk for filing the appeal and for placing the action on the calendar in the superior court. * * * No notice of appeal shall be filed unless the fees herein provided for are paid in accordance with the provisions of this section.'

The superior court made an order dismissing the appeal, stating in its memorandum opinion: 'Inasmuch as the statutory provisions for the appeal were not complied with, the appeal must be dismissed. The appellant or his counsel are responsible for the mistakes made by those to whom they entrust a duty, and a failure to comply with the statutory provisions is fatal.'

Petitioner contends that the trial court had placed a harsh and unreasonable interpretation upon section 981, an interpretation that is not only contrary to the facts in the matter but which is contrary to the spirit of the law, as expressed by this court in Gunn v. Superior Court, 73 Cal.App.2d 564, at page 568, 166 P.2d 906, 908, to the effect that 'the right of appeal is remedial in its character, and in doubtful cases should always be granted.'

Real party in interest, in reply, argues that the statutory provisions for the appeal were not complied with, that petitioner could not delegate ot the judge of the Red Bluff Justice Court the task of completing the filling out of the check and perfecting his appeal for him, and that the proper filling out of the check by the judge was in no sense an official duty. He contends that under the facts of the case the superior court had no alternative except to dismiss the appeal.

It is of course true that in...