239 P. 853 | Cal. Ct. App. | 1925
Application for a writ of review to have annulled and set aside a certain judgment of the respondent court affirming the judgment of the justice's court of township No. 4, in the county of Lake, in favor of C.E. Colwell and against the petitioners and one George A. Disselmeyer, in an action in which the first-named was plaintiff and the three last-named were defendants. Some of the proceedings which took place in the said justice's court in said action and those which took place in the respondent court are accurately set forth in the petition filed herein as follows:
"On the 27th day of January, 1925, one C.E. Colwell filed in the Justice's Court of No. Four Township, County of Lake, a complaint against your petitioners and one George A. Disselmeyer, for goods sold and delivered. A copy of said complaint and summons issued thereon were served on one of your petitioners on the 2nd day of February, 1925, at the City and County of San Francisco, State of California. The complaint contained no allegation that any of the defendants were residents of the County of Lake, at any time, nor that the defendants, or either of them, contracted in writing to perform an obligation at a particular place (Lake County). In due time your petitioner specially appeared in the said Justice's Court by motion, supported by an affidavit, for the sole purpose of quashing the service of the summons upon your petitioners, for the reason that your petitioners have not at any time resided in the County of Lake and that said action was not one brought against defendants who have contracted in writing to perform an obligation at a particular place and that therefore the Court had no jurisdiction of the person of these defendants. The Justice's Court denied the motion and your petitioners declining to proceed further, judgment by default was entered against them. From said judgment, in due time, your petitioners presented their appeal to the Superior Court of the State of California in and for the County of Lake, upon questions of law. The Superior Court of the County of Lake affirmed the said judgment of the Justice's Court."
The petitioners here claim, as they allege in their petition, that, in affirming the judgment of the said justice's *149 court in said action, the respondent Court acted in excess of its jurisdiction.
The plaintiff in said action, C.E. Colwell, filed and noticed a motion to dismiss the appeal on the ground, among others, that the purported undertaking on appeal was insufficient to support the appeal.
The learned trial judge, in a written opinion, which is incorporated into and brought up with the record constituting the return to the order to show cause issued herein by this court, declared that, while the point that the undertaking was in law wholly insufficient as such an instrument was well taken, he preferred to review and dispose of the appeal on its merits, and so affirmed the judgment upon the theory and the conclusion that it sufficiently appeared upon the face of the record in the action that the defendant Disselmeyer, at the time the action was brought and service of process was made upon him, was a resident of the county of Lake.
The specific contention of the petitioners is that the justice's court from which the appeal was taken did not obtain jurisdiction of their persons, and that, inasmuch as such jurisdiction is not made affirmatively to appear by or from the proceedings before said court, and that such jurisdiction in the justice's court cannot be presumed, since the rule is that no presumption can be indulged in favor or support of such jurisdiction, there was upon the record no other alternative left to the respondent Court but to reverse the judgment.
[1] Admittedly the justice's court had jurisdiction of the subject matter of the action, and it is equally true that, if the respondent Court acquired jurisdiction of the appeal, any errors which it might have committed in disposing thereof cannot be reviewed through or by means of a jurisdictional writ. This is elementary. As the cases put the proposition, when a tribunal or board exercising judicial functions has lawful cognizance of a case or proceeding, it has the jurisdiction (not the right, as it has been carelessly stated) to make error as well as not to do so. This statement simply means that, as above stated, error thus committed is not subject to review by a higher court through the agency of a writ whose sole and only purpose is to determine the question whether the judicial act done and objected to was within the lawful jurisdiction of the tribunal to do. *150
[2] In the present case, even if, in point of fact, it be true, as is the claim, that the justice's court never acquired jurisdiction of the persons of the petitioners, the latter certainly submitted themselves or their persons to the jurisdiction of the respondent Court by the very act of taking the appeal from the judgment of the justice's court. If this were not true, there would be presented the very novel and, indeed, absurd, situation in which the Superior Court, in the exercise of its appellate jurisdiction in the case, would be limited to the doing of one or two things, viz.: Reverse the judgment or dismiss the action. In truth, the necessary assumption of the petitioners herein is that the Superior Court has jurisdiction to reverse the judgment, but is without jurisdiction to affirm it, the practical effect of which position is that, in such a situation as is presented here, the appellant would have in his power to control the discretion of the Superior Court in the decision of the appeal. Or, as one of our cases has well interpreted a like position taken by the appellant on an appeal from the justice's court to the superior court, he thus was asking the supreme court to restrain the superior court "from trying (and determining) the appeal which he was prosecuting." (Sanborn v. Superior Court,
[3] But it is well settled, at least in this state, that the writ of certiorari will not lie "to review the judgment of a Justice's Court after appeal taken and determined in the Superior Court." (Olcese v. Superior Court,
The order to show cause is discharged and the application for a peremptory writ denied.
Finch, P.J., concurred.
Petitioner's application to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 19, 1925.
All the Justices concurred.