No. 2,552 | Cal. | Jul 1, 1871
Upon the trial had before him, the Justice of the Peace entered in his docket the verdict of the jury, as rendered, in the following words: “We, the undersigned, jurors in the case of Rosa Lynch v. William Kelly, find for the plaintiff one hundred and seventy-nine dollars in gold coin;” and subsequently, upon the application of the plaintiff, issued an execution which recited that a judgment had been rendered by him for that much money, and costs of suit.
It is now claimed that the sale was void, and that the title did not pass thereby, because, as it is said, no judgment was ever entered in form upon this verdict.
The Justice, upon receiving the verdict, was required by statute to “ immediately render judgment accordingly.” (Section five hundred and ninety-four.) The formal entry of the judgment was, therefore, a mere clerical duty imposed upon him by the statute, and the performance of which he had no discretion to decline. He might have been compelled to make the proper entry in his docket by judicial proceedings instituted against him for that purpose by the plaintiff, and it may be conceded that to issue an execution before judgment entered in form upon the verdict would be bad practice, and that a timely motion by the defendant to set it aside for that reason should be supported. That would be so, however, not because such an® execution would be void, but because it would be irregular, merely. And a failure to make the objection would, of course, amount to a waiver of the irregularity. As was said by the Supreme Court of the State of Hew York in Felton v. Mulliner, 2 Johns. 181" court="N.Y. Sup. Ct." date_filed="1807-02-15" href="https://app.midpage.ai/document/felter-v-mulliner-5472050?utm_source=webapp" opinion_id="5472050">2 Johns. 181: “ We are to overlook matters of form, and to regard proceedings before Justices of the Peace according to the merits.” Accordingly, in that case a plea of former judgment in favor of the defendant was held to be supported by proof of a verdict in his favor, upon which the Justice of the Peace ought to have rendered judgment, but had omitted to do so. In the case of Gaines v. Betts, 2 Douglas, 99, it appeared from the docket of the Justice of the Peace that the case was submitted to the jury on proofs, and that “ the jury returned with a verdict for the plaintiff"
The circumstance that by the statute of this State a Justice of the Peace is authorized to grant new trials in cases before him does not, in my opinion, affect the question.
The judgment and order denying a new trial are reversed, and the cause remanded.