Rauer's Law & Collection Co. v. Superior Court of San Francisco

This is an application for a writ of mandate to compel the superior court to set aside and vacate its order of dismissal, and to proceed with the trial and determination of an appeal taken to that court from the justice’s court. The action in the justice’s court was one in claim and delivery; and after it had been at issue for about seven years was, upon motion properly made, dismissed for the plaintiff’s failure to prosecute the same with due diligence; and as a part of that order the justice’s court made and entered-a judgment that the plaintiff return to the defendant the property described in the complaint, which had theretofore upon the commencement of the action been taken from him by the sheriff pursuant to a writ duly issued in the action.

While the petitioner here appeared in the justice’s court and resisted the motion to dismiss, no affidavit was therein filed nor was any evidence introduced on its behalf.

Within the time provided therefor the petitioner here took an appeal to the superior court from the judgment of dismissal, basing the same, according to the language of the notice, upon both questions of law and fact; but it is conceded, as it must be under the…