246 P. 82 | Cal. Ct. App. | 1926
An original application is made to this court in this case for writ of prohibition for the purpose of prohibiting the respondent, a justice of the peace, from hearing and deciding a case pending before him as such justice. The case was within the jurisdiction of the Justice's Court, and jurisdiction over the person of defendant had been legally obtained. A default had been duly entered in said case and a judgment thereon for plaintiff had been duly entered on January 17, 1924. The defendant in that action *97 moved to set aside the default and judgment on January 30, 1924. Said justice granted said motion, "with the provision that defendant paid accrued costs up to the present date." At the hearing of the motion and before the order was made, the defendant offered to pay the costs as required by the order, but plaintiffs' counsel declined to inform him what the costs were, and defendant had no means of ascertaining what they were. Defendant thereupon filed an answer to plaintiffs' complaint without paying the costs, which the justice permitted him to do. The case was then at issue. The answer remained on file without any objection by plaintiffs and without plaintiffs informing defendants what the costs were and without moving to set the case for trial, until the nineteenth day of June, 1925, when the justice, on motion of plaintiffs and without notice to defendants, entered an order setting aside the order of January 30, 1924, and adjudging that the original judgment be "reinstated." The defendant appealed from this "so-called judgment or order," to the superior court. Plaintiffs made a motion to dismiss the appeal upon the ground that the purported appeal was from an order and not from a judgment, and that the superior court was without jurisdiction of the action. The superior court denied the motion and decided the appeal on questions of law alone. It was there held by the court that the so-called order of June 19, 1925, was in effect a judgment, erroneously rendered by the Justice's Court. Therefore the judgment was reversed, and the case remanded to the Justice's Court, to be tried. It is to prevent such trial that this proceeding has been brought here.
It is the contention of petitioners herein that the justice has no jurisdiction to try the case, and that the judgment on appeal has not settled the law of the case on that question, since (so they contend) the superior court was without jurisdiction of the subject matter of the attempted appeal.
[1] While section 974 of the Code of Civil Procedure provides that an appeal may be taken from a final judgment of a justice's court and no appeal from an order is provided for, section
The appeal from the "so-called judgment or order" simply indicates that defendant was in doubt what to call it. The proceedings on appeal, although unusual, were not prejudicial to the plaintiffs for that reason, and we are required to construe the provisions of the code liberally with a view to effect its objects and promote justice. [3] The only judgment existing in the action at the time of taking the appeal was that entered on June 19, 1925, which was considered by the superior court as a final judgment. It could be rightfully so construed, because of the adjudication "reinstating" the original judgment. We therefore hold that it was within the jurisdiction of the superior court to consider the appeal and reverse the order "or judgment" of June 19, 1925. We are not called upon to consider whether the decision of the superior court was correct. It is sufficient for the purpose of this matter to decide that it was within the jurisdiction of the superior court to decide it. It is evident that the petitioners are here making a collateral attack on both the acts of the justice of the peace and the superior court. [4] The writ of prohibition cannot annul acts already done unless they are so flagrantly wrong in a judicial sense as to entitle them to no consideration. (Alexander v. Crollott,
The application for a writ of prohibition is denied.
Conrey, P.J., and Houser, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 2, 1926, and the following opinion then rendered thereon:
THE COURT.
It is contended by petitioners that this court erred in holding that an appeal lies from an order of the Justice's Court made after judgment. We did intend to so decide. In referring to "an appeal heard on a statement of the case," under the provisions of section
An application by petitioners to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 13, 1926.
