291 P. 590 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *273 This is an appeal from a judgment against the plaintiff in a suit for conversion of an equitable interest in 500 swarms of bees.
The defendant Craig was the owner of 500 swarms of bees and certain equipment which was used to extract the honey produced thereby. May 15, 1928, Craig and the plaintiff executed a conditional contract of sale and lease of said property by the terms of which the plaintiff took possession and care of said bees and equipment upon an agreement to purchase the property for a consideration of $4,000, to be liquidated within a reasonable time by paying to the vendor one-half of the proceeds from the sale of the honey and wax produced. Pursuant to this contract the plaintiff took possession of the bees and equipment and removed them to San Joaquin County and proceeded to care for them. August 18, 1928, the defendant Craig obtained a judgment for $299 against the plaintiff in a justice's court of Kern County, which remained unsatisfied. August 20, 1928, the defendant Craig procured a purported execution from said justice's court and placed it in the hands of *274 the defendant Riecks, as sheriff of San Joaquin County, for service. The sheriff promptly levied upon the plaintiff's equity in the bees and equipment and sold the same to satisfy the judgment. This action for conversion was then commenced. The respondent relies upon the authority of the sale of the property under execution as a defense.
When the execution was offered in evidence at the trial, it was objected to by the plaintiff on the ground that it was not issued by the justice as required by section
[1] It appears upon the face of the execution that it was not signed by the justice of the peace. It was merely subscribed as follows:
"Given under my hand this 20th day of August, A.D. 1928.
"T.A. BAKER, "Justice of the Peace of said Township, "By ROSE GOLDSTEIN, "Clerk."
Section
[3] The seizing of the property under the execution was unlawful for another reason. It was issued from the justice's court of Kern County and was levied upon property in San Joaquin County. It contained no certificate that the officer "issuing the same was an acting justice of the peace" as required by section
[4] The execution under which the respondent justifies the seizure and sale of the property was invalid and void. The objection to its admission in evidence should have been sustained.
In view of the foregoing construction of the statute it becomes unnecessary to pass upon the other grounds of error asserted by the appellant.
The judgment is reversed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 13, 1930, and the following opinion then rendered thereon:
THE COURT.
Both parties have petitioned for a rehearing.
[5] The plaintiff's petition is without merit. He now asks this court to anticipate the rulings of the trial court and fix a measure of damages. In the event of a new trial we must presume that court will properly determine all questions of evidence which are presented to it.
The respondent calls attention to section 103a of the Code of Civil Procedure, which was enacted in 1915, and insists that it authorizes the clerk of a justice's court in counties of the 12th class, to which Kern County belongs, to issue writs of execution without the justice's signature. That section provides: "In every township wherein provision is made by law for a clerk . . . for the justice of the peace, . . . said clerk . . . shall have power to . . . issue summons and other writs in civil actions. . . ."
[6] Justices' courts are of inferior jurisdiction. Their authority is entirely statutory. Nothing is presumed in favor of their jurisdiction.
[7] Section 4185 of the Political Code provides that "Justices of the peace must perform such duties as are prescribed in title eleven, part two, of the Code of Civil Procedure." *277
This title has particular application to "Proceedings in Justices' Courts." Chapter IX of this title specifically applies to "Executions from Justices' Courts." Section
Section
[9] Regardless of the construction of section
Even though this amendment to section
The petitions for rehearing are denied.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 10, 1930.