Docket No. 5749. | Cal. Ct. App. | Mar 4, 1927
Appeal by plaintiff from a judgment entered upon the sustaining of a demurrer to a petition for a writ of certiorari. There is no dispute as to the facts. They show in substance that on or about the twentieth day of December, 1923, an automobile owned and driven by respondent Wagnon was damaged in a collision with an automobile driven by appellant. On January 5, 1924, Wagnon brought an action in the Small Claims Court of the Township of Palo Alto against appellant to recover the sum of fifty dollars, the amount of the alleged damage. The *589 action came on for hearing before the respondent Small Claims Court and respondent Isabel L. Charles as a justice thereof. Appellant objected to the jurisdiction of said Court and of said Justice, upon the ground that he did not reside in and was not a resident of the said township, but that, on the contrary, he was at all times a resident of the city and county of San Francisco. This fact was established without conflict at the trial. Notwithstanding such plea and evidence, respondent Small Claims Court, and the said Justice thereof, proceeded to try the case on its merits and required appellant to testify therein. No judgment was rendered at the conclusion of the trial but one was subsequently made and entered in favor of respondent Wagnon and against appellant for the sum claimed. Appellant had no knowledge whatsoever that judgment had been rendered in the action for more than five days thereafter, at which time his right of appeal had expired, when an execution was issued out of said court directed to the sheriff of the city and county of San Francisco, pursuant to which certain personal property belonging to appellant was seized, which the sheriff threatened to sell. Appellant thereupon immediately applied by petition for a writ of review to the superior court of Santa Clara County alleging the foregoing facts and the lack of jurisdiction in the Small Claims Court to render the judgment, and thereby sought to require the Small Claims Court and the Justice thereof to certify the records and proceedings in said action to said superior court, for the purpose of obtaining the annulment of the judgment. Upon the filing of this petition an order was duly made and filed, directing the issuance of the writ prayed for. The said Justice of the Small Claims Court and Wagnon filed a demurrer to the petition. The demurrers were sustained without leave to amend, and thereafter a judgment of dismissal of the writ of review was made and entered. From this judgment the present appeal is taken. It was respondents' contention below, and is here, that conceding lack of jurisdiction in the Small Claims Court and the Justice thereof, petitioner was not entitled to a review because the judgment of the Small Claims Court was appealable. The lower court was of a like opinion.
[1] The general rule may be stated to be that certiorari
will not lie where the petitioner has the right of appeal. *590
However, there are cases where, on account of unusual circumstances, writs of review lie although there has been at one time a right of appeal. An exception to the rule thatcertiorari cannot be resorted to after the time for appeal has expired, may be found in instances where no notice of judgment has been had until after such time has elapsed. The principle is acknowledged in Elder v. Justice's Court,
The judgment is reversed.
Knight, J., and Cashin, J., concurred.