De Jarnatt v. Marquez, 60 P. 45

De Jarnatt v. Marquez

60 P. 45 | Cal. | 1900

This is an application to dismiss defendant's appeal. Plaintiff commenced an action in the justice's court to recover upon a promissory note made by defendant in the sum of two hundred and fifty dollars. The instrument provided for the payment of attorneys' fees in the event of suit. In his complaint in the justice's court plaintiff alleged that the sum of one hundred dollars was a reasonable attorney's fee. He asked judgment for the face of the note, with interest, and attorney's fee in the sum of one hundred dollars. Defendant joined issue in the justice's court, and, after trial, appealed to the superior court from the judgment given against him. The appeal was upon questions both of law and fact. After trial de novo in the superior court, judgment was again given for plaintiff for the amount of the note with interest, and for attorneys' fees fixed in the sum of one hundred dollars. From the judgment of the superior court defendant took the appeal to this court which is here sought to be dismissed.

Attorneys' fees under a contract such as this are in the nature of special damage. (Prescott v. Grady, 91 Cal. 519; Clemens v.Luce, 101 Cal. 432.) Plaintiff's demand, therefore, in his action in the justice's court was for two hundred and fifty dollars, the principal sum of the promissory note, and the one hundred dollars pleaded by way of special damage as a reasonable attorney's fee. The justice's court was therefore without jurisdiction and its judgment void. (Code Civ. Proc., sec. 112, subd. 1.) Whether or not, upon a showing of these facts, the superior *560 court should have declared the judgment of the justice's court void, still as it tried the case and rendered a judgment against defendant for over three hundred dollars, he has the right of appeal to this court from that judgment, even though it be void.

The fact that the sureties did not justify upon the three hundred dollar appeal bond is not a ground for dismissal of the appeal. (Hill v. Finnigan, 54 Cal. 311; Tompkins v. Montgomery,116 Cal. 120.) Nor is the further fact that one of the attorneys of appellant became a surety upon the undertaking on appeal in violation of a rule of the superior court a ground of dismissal. It is a matter cognizable before that court, to be dealt with as it shall be advised.

The motion to dismiss is denied.

McFarland, J., Temple, J., Van Dyke, J., Harrison, J., and Garoutte, J., concurred.