103 P. 317 | Cal. | 1909
An action upon contract was brought in the justice's court for the first judicial township of the county of Contra Costa against petitioner Olcese. The complaint was in all respects sufficient to show jurisdiction in the justice's court of the subject-matter of the action. (Code Civ. Proc., sec. 832, subd. 7.) It failed to allege, however, that the defendant's contract was in writing, and while, under the provision of the code last above cited, jurisdiction of the subject-matter is in the justice's court, whether the contract be oral or in writing, yet, by the provisions of section 848 *84 of the Code of Civil Procedure, as amended in 1907, service upon the defendant may not be had outside of the county in which the action is brought, unless the contract be in writing. Service in this case was had upon the defendant in the city and county of San Francisco. He appeared in the justice's court by motion, supported by affidavit, to quash the service of the summons for the reason above indicated, and at the same time demurred, his demurrer reading as follows: "The defendant in the above-entitled action, specially appearing for said purpose, demurs to the complaint in said action on the ground that the court has no jurisdiction of the person of this defendant or of the subject-matter of said action. Wherefore said defendant prays to be hence dismissed with his costs herein incurred." The justice's court denied the motion and overruled the demurrer, and this petitioner declining to proceed further, judgment by default was entered against him. From that judgment, in due time he prosecuted his appeal to the superior court of the county of Contra Costa upon questions of law. The superior court of Contra Costa affirmed the judgment of the justice's court. Thereafter this petitioner sued out certiorari to review the judgment, not of the superior court, but of the justice's court. The first question presented is whether or not petitioner has mistaken his remedy; that is to say, whether his right to certiorari, ifcertiorari should be issued at all, is not limited to a review of the judgment of the superior court; second, upon the merits whether or not, conceding that petitioner was improperly served in the city and county of San Francisco, his appearance by demurrer did not constitute a general appearance so as to waive the irregularity in the service of summons.
The constitution (art. VI, sec. 4) vested this court with power to issue writs of certiorari. At the time this constitutional provision was passed, it was well settled and well understood that certiorari was not a writ of right, that the granting or refusing to issue it rested in the discretion of the court, and that by modern common-law usage and by the rules laid down by the decisions of this state under its earlier constitution, the writ would not be issued where the matter sought to be reviewed could be heard and determined upon appeal. "The remedy of defendant is by appeal and not by writ of review. The latter lies only when the former does *85
not." (People v. Shepard,
Such are the general principles, and the recognized practice in such a case as this has been to seek a review of the judgment of the superior court. (Sherer v. Superior Court,
But if consideration be paid the merits of this controversy, petitioner is not entitled to a judgment at our hands uponcertiorari. For, notwithstanding the alleged defect in the service on him of the summons, if he made a general appearance in the justice's court, he will be bound by that appearance as having waived the informality of his summons. Pleas based upon lack of jurisdiction of the person are in their nature pleas in abatement and find no especial favor in the law. They amount to no more than the declaration of the defendant that he has had actual notice, is actually in court in a proper action, but, for informality in the service of process, is not legally before the court. It is purely a dilatory plea, and when a defendant seeks to avail himself of it, he must, for very obvious reasons, stand upon his naked legal right and seek nothing further from the court than the enforcement of that right. He will not be heard to ask of the court anything further that an adjudication upon his plea, and if he does ask anything further, then, by logic of the fact, he must necessarily have waived the irregularity of his summons before the court. Here is one reason for the well-settled rule that if a defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that objection. Another reason equally valid, is that if such defendant shall ask for any relief other than that addressed to his plea, he is seeking to gain an unconscionable advantage over his adversary, whereby, if the determination of the court be in his favor he may avail himself of it, while, if it be against him, he may fall back upon his plea of lack of jurisdiction of the person. So it is well settled that if a defendant, under such circumstances, raises any other question, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general, though *88
termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons. (In re Clark,
For the foregoing reasons the writ is discharged.
Shaw, J., Angellotti, J., Sloss, J., Melvin, J., and Lorigan, J., concurred.
Beatty, C.J., dissented. *89