Napolitano

We are asked to vacate an order of the Superior Court of Los Angeles County dismissing an appeal from a judgment of the justice’s court, rendered in an action of Agustino Riggio against J. Napolitano, petitioner herein.

It appears without conflict that the case on appeal was not brought to trial until after the expiration of one year from the date of its filing in the Superior Court. It was set for trial therein on the sixth day of December, 1926. At the time of being set down for trial counsel for both sides were present in court, and orally stipulated to the date which was fixed; on December 6, 1926, both sides were present, and the case was tried. The petition alleges that judgment was then rendered in favor of the defendant, petitioner. No return was made by respondents, and so this statement must be accepted as true, although the clerk’s transcript contains no copy of the judgment. Thereafter counsel for Riggio moved the court to set aside the judgment and to dismiss the appeal. No stipulation in writing extending the time for trial was filed as permitted by section 981a of the Code of Civil Procedure. Nevertheless, the court proceeded to trial without objection from either…