38 Cal. 683 | Cal. | 1869
Certiorari to the County Court to bring up for review the record in an action tried and determined in that Court on appeal from a Justice of the Peace. The principal question is whether the Justice of the Peace had jurisdiction of the
But, rejecting as surplusage the averment of the defendant’s promise, and treating the action as an action of trespass, it is still within the jurisdiction of a Justice of the Peace. In Holman v. Taylor (31 Cal. 338), the title of the respective parties to certain parcels of real estate was in issue, and in ascertaining-the meaning of the clause of the Constitution “all cases at law which involve the title or possession of real property,” the subject of possession was considered, but only by way of argument, and for the purpose of illustration; and in the discussion our language was not in all respects sufficiently guarded and definite. To constitute a case which involves the possession of real property, it is not enough that the possession is a fact in controversy, or incidentally in question, or that the fact of possession is in issue; but the right of possession must be involved in the action. The paraphrase of the clause of the Constitution, given in Holman v. Taylor, would be more accurate, and would more fully express our idea of the meaning of that clause, if given in this language : “Cases at law in which the title or right of possession of real property is a material fact in the case, upon which the plaintiff relies for a recovery, or the defendant for a defense. ” The allegation of tho right of possession is quite different from that of possession in fact, which may constitute merely tho basis of some right or claim
The practice adopted in this case cannot be commended. The return is made by annexing to the petition a certificate that it is a full, true and correct copy of the pleadings and proceedings in the action. If that document constitutes the return, then there is no petition, unless the same document is both petition and return.
There is no express provision in the statute that when a party to an action applies for or procures a writ of certiorari to bring up the record and proceedings in the action he shall notify the adverse party; but it is provided by the 457th Section that the Court may order notice of the application to be given to him. It is obvious, however, that he should be duly notified of the proceedings, for the judgment annuling the judgment of the inferior tribunal would not bind him, unless he had his day in Court, on the hearing of the certiorari. Notice of these proceedings ought, therefore, to have been given to the defendant to the action.
Judgment affirmed.
By Sandebson, J.: I concur in the judgment.