Donner

Two eases, entitled Upland Realty & Insurance Company v. J. H. Donner and Montrose McCann and E. O. Bowden v. J. H. Donner, were appealed from the justice’s court to the Superior Court of Los Angeles County, but were not brought to trial within the year following the date upon which the appeals were filed. [1] For thirteen days after the one .year expired no steps were taken to have the appeals dismissed, and no attempt was made by the parties to comply with the requirements of section 981a of the Code of Civil Procedure with regard to preserving the jurisdiction of the Superior Court to hear them. At the end of that time, however, the parties to both actions entered into and filed stipulations which provided “that the time of trial on appeal in the superior court of the above-entitled actions, and each of them, may be, and the same is hereby extended so that the trial of said actions, and each of them, may take place after the period of one year has elapsed from the time of taking the appeals in said actions; and that said actions, nor either of them, shall not be dismissed for failure to bring same to trial within the period of one year after the taking of said appeals.”…

Concurring. — I concur in the judgment and in everything that is said in the foregoing opinion, with the exception that I am not in accord with the comments upon Rio Vista Min. Co. v. Superior Court, 187 Cal. 1 [200 Pac. 616]. I think the opinion in that case is out of harmony with other decisions of the supreme court upon kindred subjects. The only material differences between section 581 of the Code of Civil Procedure, which is dealt with in the case cited, and section 981a, are two. First, section 583 provides for notice of the motion for dismissal to be made by a party, while section 981a does not; but this difference in the letter seems not to effect a difference in the spirit of the sections. “It is, of course, beyond question that where a motion is required to be made for an order in a cause whereby the right of an adverse party may be affected, it must be upon notice to such party” (Bohm v. Bohm, 164 Cal. 532 [ 129 Pac. 981 ]). If it be said that a motion is not “required,” within the meaning of this language of the supreme court, under either section 583 or 981a, because a dismissal may occur of the court’s own motion, there seems to arise another and totally different…