162 P. 420 | Cal. Ct. App. | 1916
A writ is sought by plaintiff to review the action of the defendant in a certain action wherein C. D. Johnson is plaintiff and D. B. Brians is defendant. *207
It appears from the petition that on April 1, 1914, said C. D. Johnson commenced an action against said D. B. Brians in the justice's court of Redwood Township, Sonoma County, by filing a complaint therein; that defendant Brians entered his appearance in said action in said court and an issue of fact was thereby presented; that on May 5, 1916, said action was called for trial in said justice's court, the plaintiff Johnson and the defendant Brians each being represented by attorney; that the original complaint in said cause was not then on file in said court but was lost, which fact was then and had been prior thereto, known to said Johnson's attorney; that on said day, May 5th, the said action was called for trial, no complaint being then on file in said court; that defendant Brians objected to the introduction of any evidence on the ground that there was no complaint on file, and over defendant's (Brians') objection, the cause was tried and thereafter, to wit, on June 3, 1916, the said justice's court gave judgment for Brians, the defendant therein; that thereafter the said Johnson "took an appeal from said justice's court judgment to the Superior Court of Sonoma County, the defendants herein"; that on October 6, 1916, the said Johnson moved the superior court "for an order authorizing a copy of the original complaint in said action to be filed and used and served as the complaint in said action on the ground that the original complaint in said action had been and is lost"; that Brians, defendant in said action, objected to and resisted said motion, and on the sixth day of October, 1916, said court made an order granting said motion of said Johnson; that in making said order, the court exceeded its jurisdiction; that there is no appeal from said order, and petitioner has no plain, speedy, or adequate remedy at law. Petitioner prays that said order be decreed to be in excess of the jurisdiction of the defendant court.
It appears from the return to the alternative writ that the cause of Johnson v. Brians came on regularly for trial on October 6, 1916, both parties represented by attorney; that plaintiff's attorney made a motion for an order permitting plaintiff "to file a copy of the original complaint to take the place of said original complaint, the same having been lost, whereupon comes now the court and orders that said motion be submitted." It further appears from what we take to be a copy of the clerk's minutes in the action as follows: "On *208 said motion L. E. Fulwider (attorney for Brians) was sworn and testified on behalf of defendant, and opposed the said motion. C. D. Johnson was sworn and testified on behalf of plaintiff, and a note and notice of sale were offered, received in evidence, and marked plaintiff's exhibits A and B. William F. Carr and W. F. Olney were sworn and testified on behalf of plaintiff, whereupon plaintiff rests. Defendant not offering any evidence herein, comes now the court and orders that this cause be, and the same is hereby submitted." Then follows a copy of what is entitled "Findings and Judgment" in the case, signed by the judge of date October 6, 1916. It is recited therein: "This cause came on regularly for trial on October 6, 1916, on appeal from the justice's court of Redwood Township, Sonoma County, on questions of both law and fact, both parties being present and represented by counsel. A. M. Johnson, Esq., appearing for plaintiff and L. E. Fulwider, Esq., appearing for defendant." The execution and delivery of the promissory note, the subject of the action, its assignment to plaintiff, partial payments and the amount due are found and judgment entered for $30.65, the balance due.
The point relied upon by petitioner is that the complaint having been lost before the trial in the justice's court and no copy having been submitted in that court, the superior court was without jurisdiction to proceed after objection made by defendant.
The argument is thus presented: An action is commenced in a justice's court by filing a complaint (Code Civ. Proc., sec. 839); and such complaint must be in writing (Id., sec. 851); that a complaint or substituted copy must always be on file unless its absence is waived; and that there can be no judgment without pleadings, original or substituted, "and the allegations thereof must be sufficient to sustain the proof"; citing Wilson v. White,
The petition fails to show the ground on which petitioner "objected to and resisted said motion" made in the superior court to substitute a copy for the original complaint. All that appears in the minutes of the trial in the superior court is that "on said motion L. E. Fulwider was sworn and testified on behalf of defendant, and opposed said motion." The testimony of defendant's attorney is in the return, and relates only to what occurred in the justice's court. It appears from the return that after the motion was granted and the substituted complaint presented and filed, the cause was tried upon its merits, the "findings and judgment" reciting that plaintiff was represented by attorney and defendant also represented by attorney. The only objection made by defendant's attorney was to the motion, and after the court ruled thereon, defendant's attorney continued to appear for defendant at the trial on the merits making no objection to the jurisdiction of the court.
Where the appeal from a justice's court is upon questions of law and fact and the defendant seasonably challenges the jurisdiction of the court to try the action upon its merits, by reason of the want of jurisdiction of the justice's court over the subject matter of the action appearing upon the face of the record, such defendant is entitled to an order dismissing the action for want of jurisdiction to try it upon its merits. (Bates v. Ferrier,
If the appeal is taken "on questions of both law and fact," the "action must be tried anew in the superior court" (Code Civ. Proc., sec. 976); and the justice is required to transfer to the superior court certified copies of his docket and all the pleadings and papers, etc., filed in the cause. (Code Civ. Proc., sec. 977.) "On such appeal," said the supreme court inMaxson v. Superior Court of Madera Co.,
Had petitioner seasonably challenged the jurisdiction of the superior court to try the action on its merits by reason of the want of jurisdiction of the justice's court over the subject matter of the action appearing upon the face of the record, he might have brought the matter within the rule inBartnett v. Hull,
In De Jarnatt v. Marquez,
The writ must be denied on a further ground. It is admitted that a complaint was filed in the justice's court, and that court, therefore, had jurisdiction. This jurisdiction was not lost by the disappearance of the original complaint. A copy should have been substituted in the justice's court, but the trial had without it was an irregularity and cannot be said to have been without jurisdiction. The missing paper, as we *211 have seen, was authoritatively supplied in the superior court, and the cause was there tried on its merits without objection by defendant. The judgment cannot now be questioned.
The writ is denied.
Hart, J., and Burnett, J., concurred.