McKay

This is an original proceeding in certiorari, in this court, to review an order of the superior court dismissing an appeal from a judgment rendered in a justice’s court. The theory of the petitioner is, we suppose, that the superior court had no jurisdiction to dismiss the appeal. The code does not prescribe any time within which an appellant from a judgment in a justice’s court must file the record on appeal in the superior court. It merely provides that after the filing of the notice of appeal and undertaking, and the settlement of the statement, if any (and in the case at bar there was none), and “on the payment of the fees of the justice,” the justice must, within five days, transmit to the clerk of the superior court certain papers which constitute the record. (Code Civ. Proc., sec. 977.) An appellant, therefore, by simply refusing to pay the justice’s fees, might indefinitely postpone the presentation of the record in the appellate court, so far, at least, as there is any specific statutory provision on the subject. But section 980 provides that “ for a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the superior court, after notice, may…