89 P. 870 | Cal. Ct. App. | 1907
This is an appeal by defendants in a certiorari proceeding, in which the trial court gave the respondent judgment, annulling a judgment in favor of the plaintiff in the justice's court in and for the city and county of San Francisco.
On December 2, 1896, Benjamin Lust commenced an action against C. P. Hall in the justice's court in the city and county of San Francisco to recover $253.75 for goods sold and delivered. Summons was issued on that date, and was served January 7, 1897. Summons was returned served January 28, 1897. Nothing further was done in the action until more than eight years after the return of summons, when, on May 19, 1905, judgment was entered in favor of the plaintiff and against the defendant for $253.75, interest and costs. No appeal was ever taken from this judgment. It is the contention of respondent that it was the duty of the justice, at the time of the return of the service of summons, January 28, 1897 (it disclosing that the time within which to appear and answer had expired), to note on the docket the nonappearance of the defendant, and to thereupon enter a judgment of default in favor of the plaintiff and against the defendant. That, if he did not do so then, he might do so later, but as of the date of the default. This contention rests upon sections 845, 871,
"If the defendant fail to appear, and to answer or demur within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had:
"1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of the plaintiff for the sum specified in the summons." *137
Section 871, Code of Civil Procedure, does not direct the justice to enter a judgment by default within any prescribed time. The entry of the nonappearance of the defendant, which sections 911 (subd. 4) and 912 exact, is a ministerial duty. It is made by the clerk of the justices' court in the city of San Francisco. (Code Civ. Proc., sec. 93.) The failure to execute a ministerial duty does not devest a court of jurisdiction. Provisions of the code much stronger and definite in terms than the sections cited have been repeatedly held directory. In the case of Heinlen Co. v. Phillips,
That case was followed and approved in American Typefounders'Co. v. Justice's Court of Sausalito Township,
In the case of Edwards v. Hellings,
In the case of Lynch v. Kelly,
"A writ of review may be granted . . . when an inferior tribunal . . . exercising judicial functions has exceeded the jurisdiction of such tribunal . . . and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy." (Code Civ. Proc., sec. 1068.) Tested by this section and the decisions in this state, the writ should not have been granted. The justice's court acted within its jurisdiction, as has just been shown. Again from the judgment in the justice's court defendant had an appeal, which he lost through his own laches; and again, according to the petition itself for the writ of certiorari, the defendant knew of the rendition of the judgment against him within thirty days *139 thereafter, and therefore within time to have moved in the justice's court, under section 859, Code of Civil Procedure, as amended in 1905, to set aside the judgment if taken against him by his mistake, inadvertence, surprise or excusable neglect.
The justice's court having acted within its jurisdiction,certiorari will not lie.
In Borchard v. Supervisors,
An appeal might have been taken, and it is no excuse that defendant did not know of the rendering of the judgment in time to avail himself of that remedy. In the case of Tucker v.Justice's Court,
The judgment is reversed, and the trial court directed to dismiss the petition.
Hall, J., and Cooper, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1907.