Opinion
Appeal from a judgment of the late Nineteenth District Court, and from an order of the Superior Court of the city and county of San Francisco.
COUNSEL:
The municipal court of appeals exceeded its jurisdiction in dismissing the appeal without notice to the appellant (§§ 10 and 12 of the Statutes of 1877-78, p. 947; Code Civil Proc., § 980); such notice should have been in writing. (Code Civil Proc., § 1010; Borland v. Thornton , 12 Cal. 441.)
R. Percy Wright, for Appellant.
Jos. Rothschild, for Respondent.
JUDGES: In Bank. Sharpstein, J. Ross, J., Morrison, C. J., and McKee, J., concurred.
OPINION
SHARPSTEIN, Judge
The respondent had the power to dismiss an appeal for a failure to prosecute it, or unnecessary delay in bringing it to a hearing. (C. C. P., § 980.)
Said court dismissed the appeal in Rothschild v. Alexander, "for want of prosecution." Conceding that the record does not show the existence of that or any other valid ground for the dismissal of the appeal, was such dismissal without or in excess of the jurisdiction of said court? If not, the order cannot be reviewed on certiorari. The court had the power to dismiss the appeal for a failure to prosecute it. And the question whether there had been a failure to prosecute it was one which the court would have to decide, whenever a motion was made to dismiss on that ground. The most that can be claimed in this case is, that the court erroneously decided there had been a failure to prosecute; because in case of a failure to prosecute, a dismissal is expressly authorized. The question whether there had been a failure or not was one on which the court was authorized to pass, and if it decided correctly, no question of jurisdiction could arise. And we think that none can arise, where a court erroneously decides a question which it has the power to decide. To decide whether there has been a failure to prosecute an appeal requires the exercise of judgment. The code does not say what shall be deemed to constitute such a failure. It was therefore the duty of the court to determine what did, and an [5 P. 676] erroneous decision of the question affords no ground for a review of the judgment on certiorari .
Judgment affirmed.