82 P. 263 | Cal. Ct. App. | 1905
This is an appeal from the judgment of the superior court of Tuolumne County dismissing a writ of review sued out in said court to review the judgment of the justice's court of the second township of said county. There *384
is no bill or statement, and the appeal will be heard on the judgment-roll alone. The writ of certiorari was issued, and when the matter came on to be heard on the return the defendant moved to dismiss the writ on the ground that the petition or record does not show facts sufficient to entitle plaintiff to the writ. It was thereupon stipulated in open court by the respective parties that the said motion to dismiss and the said cause be heard and submitted together. The court found, among other things: "2nd. That on or about the 27th day of June, 1903, an action was commenced by one Louis Lepape against the above-named plaintiffs and one Chas. E. Grant, in the said justice's court, which said action is entitled 'Louis hepape, plaintiff, vs. William Grant, George F. Grant, and Charles E. Grant, defendants,' . . . brought to recover the sum of $106 and costs," for services performed, etc. In the fourth finding is the following: "That on the 22nd day of July, 1903, a legal summons therein was duly served on said defendant, William Grant, in said county of Tuolumne. That thereafter on July 30th, 1903, Charles E. Grant, one of said defendants, appeared in court before the said justice, and on behalf of himself and William Grant and George F. Grant, his brothers and co-defendants, made a verbal answer denying generally and specifically each and every allegation contained in said complaint of plaintiff. That said defendant, William Grant, had orally requested said Charles E. Grant to so appear and answer for him, and the said Charles E. Grant, in pursuance of said oral request and not otherwise, did appear and enter said answer as aforesaid, but said defendant, George F. Grant, had not authorized said Charles E. Grant to appear for him nor had said George F. Grant been served with summons in said action." In the fifth finding is the following: "That on October 20th, 1903, the cause was duly set for trial by the court for October 31st, 1903, at 10 o'clock A. M., and notice of the time and place of trial issued in due form as required by section
I have quoted enough of the findings to determine whether the findings would warrant the judgment which the court made. It might be well to state further that the court found that the said judgment rendered by said justice was an appealable judgment, and that neither William Grant nor George F. Grant had appealed from the same nor any part thereof, and that more than thirty days had elapsed since the rendition and entry of said judgment, and before the filing of the petition for the writ of review herein.
As conclusions of law, the court found: —
"That the petitioners are entitled to a judgment annulling the judgment entered by the justice of the peace of the second township of Tuolumne County in favor of Louis Lepape and against Geo. F. Grant, and all subsequent proceedings upon said judgment as against said Geo. F. Grant.
"That all the proceedings had and taken in said justice's court in said action in favor of said Louis Lepape against said William Grant are hereby affirmed, and judgment accordingly so ordered.
"That the facts are not sufficient to support the writ ofcertiorari heretofore issued as to William Grant, and defendants are entitled to a dismissal of the said writ as to said William Grant."
The superior court thereupon rendered its judgment annulling the judgment and subsequent proceedings of the justice as to the said George F. Grant, and affirming the judgment of said justice in said action in favor of said Louis Lepape and against said William Grant, and dismissing the said writ of review.
We think the findings support the judgment. The only question in the case of any importance is whether William Grant's notice that the case was set for trial in the justice's court was sufficient, and we think it was. While not a resident of Tuolumne County, he was served with a summons in that county, and directed his brother to appear and answer for him, which his brother did. His brother was served as his attorney with the notice required under section
It is suggested that no presumption be indulged in in favor of the justice's court. There is no occasion to indulge in any presumptions in this case, for the record of the justice is before us in one of the findings of the court. We think, under all the circumstances of this case and appearing in the court's findings, the notice the appellant had of the time set for the trial in the justice's court was sufficient. In Jones v.Justice's Court,
In this case the justice did not proceed to try the case without having first set the case for trial and notified the parties, and his record, which was certified up to the superior court, shows that notice of the time and place of trial was served upon the attorney of appellant, and it shows the evidence on which the justice acted in holding that notice was served as required under section
The judgment of the lower court is affirmed.
McLaughlin, J., and Chipman, P. J., concurred.