Pistolesi

This is a petition for a writ of mandate to compel defendants to dismiss an action pending in said superior court.

The sole question involved is, Does section 583 of the Code of Civil Procedure apply to actions pending in the superior court on appeal thereto upon questions of fact from the justices’ court?

The essential facts are these: On the twenty-second day of November, 1904, the action out of which this proceeding grows was commenced. Within the time prescribed by law the answer of the defendant therein was filed, and on the second day of May, 1905, judgment was rendered in favor of the plaintiff therein, W. P. Johnson, against the defendant G. Pistolesi (who is the petitioner here) for a certain sum, together with interest and costs. From that judgment Pistolesi perfected an appeal to the superior court, stating that such appeal was taken upon questions of both law and fact; and the papers in the action were accordingly, as required by law, transmitted to the superior court. The ease has never been tried in the superior court, and on the twenty-seventh day of December, 1913, the defendant Pistolesi served the plaintiff Johnson with a notice that he would move the superior…