Lead Opinion
This is an application for a writ of certiorari, otherwise called the writ of review.
The facts are, that E. B. Mutter commenced an action in the justice’s court against Armantage, the plaintiff herein. Summons was duly served on Armantage, who thereafter demurred to the complaint, and on said demurrer being overruled, answered. The case was thereafter set down for trial. The notice that the case had been set for trial was not served *131 like a summons, as is required by section 850 of the Code of Civil Procedure, but was served by mail only. Armantage did not appear at the time fixed fоr trial, and the justice at said time tried the case in the absence of Armantage and rendered judgment against him. Thereafter Armantage duly appealed to the defendant, the superior court, on questions of both law and fact. The easе was set for trial in the superior court. The appellant appeared and objected to a trial, and asked that the judgment of the justice be reversed and the cause remanded to the justice’s court. The superior court refusеd to make such order, but proceeded, against the objections and exceptions of the appellant, Armantage, to try the issues of fact, and rendered judgment against Armantage for two hundred and fifty dollars and costs.
It is contended that thе superior court had no jurisdiction on the appeal to do anything in the case except reverse the judgment and order the case back to the justice’s court in accordance with the demand of the appellant.
“When а party appeals to the superior court on questions of fact, or on questions of both law and fact, no statement need be made, but the action must be tried anew in the superior court.” (Code Civ. Proc., sec. 976.)
The above section is perfectly intelligible, and if it were to have a literal construction it would seem that the appeal having been taken on questions of both law and fact, the court in trying the ease anew pursued the only course left open to it under the statute. But it is said that the supreme court has held that where no trial of the case has been had in the justice’s court, it is the duty of the superior court to reverse the case for error of law and order the ease back to the justice’s court for further proceedings. Such seems to be the rule laid down by the supreme court, where the appeal was taken on both questions of law and fact.
(Myrick
v.
Superior Court,
The above-quoted section of the Code of Civil Procedure was adopted for the purpose of expediting litigation in justices’ court. It was recognized that if the samе procedure was to be followed on appeals to the superior court that is
*132
pursued on appeals to the supreme court, it would follow that, skillful advantage being taken of such procedure, it might be made practically impossible in some cases to secure a final judgment of any value in the justice’s court. And so they gave the superior court by this statute what may be termed an original jurisdiction to try the case, where the appeal was taken on questions оf fact, or on questions both of law and fact.
(Bullard
v.
McArdle,
Moreover, it is not the question of the jurisdiction of the justice court thаt is involved in this case. The petition here is aimed at the judgment of the superior court rendered on the appeal, and the question is, Was that judgment rendered without jurisdiction? The petitioner appealed the case, and by virtue thereof gave the superior court jurisdiction of the cause, as well as of the persons of all the parties to the suit. It was not required that notice of the trial should be served “the same as a summons” before trial could be had in the superior cоurt. All the jurisdictional steps leading to a trial of the ease de novo in the superior court had been taken when the appeal on questions of both law and fact had been perfected (unless, possibly, it might be held that the five days’ notice of the trial required by section 594 of the Code of Civil Procedure was jurisdictional, but it is not here contended or shown that such notice was not given, and it will be presumed that it was given). The very first thing that the court was *133 called upon to do in the exercise of the jurisdiction thus conferred upon it by the appeal was to сonstrue said section 976 of the Code of Civil Procedure and determine whether he would try the case or send it back. Let it be conceded, without deciding the question, that, under the statute as heretofore construed by the supreme court, the suрerior court should have sustained the objection of the appellant to trying the case and should have granted his request to reverse the judgment of the justice and send the case back; yet the refusal was only error. If these objections had not been made, or if the appellant had failed entirely to appear after his appeal vzas perfected, and a trial, after the five days’ notice, had been had in his absence in the superior court, there cоuld have been no question as to the validity of the judgment following such trial. The court had the same jurisdiction to overrule appellant’s objections that it had to sustain them, or to proceed to judgment in the appellant’s absence. Jurisdiction is the power to decide—wrong, as well as right.
The fact is, the petitioner here, having no appeal from the decision of the superior court, is endeavoring to substitute
certiorari
for an appeal, and thereby have reviewed the objections mаde and the exceptions taken in the superior court that he is prohibited from having reviewed upon appeal. This he may not do. It has been held in every late case in our supreme court, where the question has been squarely raised, that
certiorari
goes only to the jurisdiction or power of the court to act, and can never be substituted for an appeal to review the mere errors of a judicial tribunal.
(Borchard
v.
Supervisors,
The petition for the writ is therefore denied.
Allen, J., concurred.
Concurrence Opinion
I concur, "with some hesitation, in the conclusion reached by the majority of the court. By the provisions of the Code of Civil Procedure bearing upon the subject, the party appealing from the judgment of the justice’s court is allowed thirty days after the rendition of judgment to perfect his appeal (sec. 974). In the following
*134
section two methods of appeal are provided, namely: 1. Within ten days on a statement of the case, on questions of law
alone; 2.
Within thirty days without a statement, on questions of fact or of law and fact. In the latter ease, the proceeding is not, properly speaking, an appeal; nor is the judgment said to be appealed from
reversed,
as it would be—if found erroneous—on appeal. But the judgment is vacated by the mere act of the so-called appellant, in the еxercise of. his option, and the cause transferred for all purposes to the superior court; which thereupon acquires original, or quasi-original, jurisdiction of the case.
(Bullard
v.
McArdle,
It is, indeed, difficult to reconcile this conclusion with the decisions holding that on appeal from a judgment in a justice’s court on questions of fact, the superior cоurt has jurisdiction only to “retry the issues tried in the court below”; or, as otherwise expressed, that “the issues of
fact
cannot be tried
anew
in the superior court until after they have been tried in the justice’s court.”
(People
v.
El Dorado County Court,
It is also to be observed that neither in the principal case nor in the cases affirming it was the question considered whether the action complained of was mere error or in excess of jurisdiction; though the former view seems to be affirmed in
Lewis
v.
Barclay,
A petition to have this cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on August 4, 1905.