119 P. 98 | Cal. | 1911
A writ of certiorari was issued from this court directed to the superior court of Mendocino County and the judge thereof, requiring the certification here of the proceedings *330 in the case of Ed. Gibson v. Henry T. Thomson et al., appealed to the said superior court from the justice's court of Round Valley Township, county of Mendocino. In his petition Thomson prayed for a writ of certiorari and for mandate to compel the setting of the appealed case for trial in the superior court.
The action in the justice's court was in claim and delivery. Trial was had before a jury and a verdict in favor of the plaintiff was rendered on June 25, 1910. On the same day the justice of the peace made an entry in his docket as follows: —
"June 25. Court called and a jury of twelve men sworn to try the case. After hearing the evidence they brought in a verdict for plaintiff for the return of the horse or $100.00 in lieu thereof, and costs of suit."
On June 27th plaintiff served and filed his memorandum of costs. On June 30th defendant Thomson's attorneys prepared his notice of appeal to the superior court and served it upon plaintiff. Thomson's attorneys also caused an undertaking on appeal in the sum of three hundred dollars to be prepared. About July 18th the notice of appeal was sent to the justice of the peace by the attorneys for Thomson, accompanied by a letter, in which he was requested to make sure that the judgment was entered as of June 25, 1910, and to file the notice of appeal before filing the bond. Similar directions were sent with the form of appeal-bond to the defendant, who caused it to be signed by two sureties. It was then given to the justice for filing. The undertaking, however, was filed July 18, 1910, and the notice of appeal on July 20th, nineteen days after service of said notice on the plaintiff. On the fifteenth day of August, 1910, the justice of the peace entered in his docket a formal judgment.
These proceedings were duly certified to the superior court, and respondent in that cause moved said court to dismiss the appeal upon the grounds that: 1. It was premature, as no judgment had been entered on June 25, 1910, and no appeal had been taken within thirty days after the entry of judgment of August 15, 1910; and that; 2. No undertaking on appeal had been filed with the justice of the peace. The motion was granted upon both grounds, the court basing the ruling as to the second ground upon the circumstance that the undertaking was filed before and not within thirty days after the filing of *331 the notice of appeal. The superior court also denied appellant Thomson's motion to set the cause for trial. In the answer to the petition herein, counsel for respondent point out the fact that the undertaking on appeal, although it contains a form of verification signed by both sureties, shows no signature to the jurat by the justice of the peace, or any other person empowered to administer and certify oaths.
The most important question for consideration is whether or not the entry of the verdict by the justice of the peace on June 25, 1910, was a sufficient compliance with the law's requirement that the judgment shall be entered. Section 893 of the Code of Civil Procedure provides that, "The judgment of a justice of the peace must be entered substantially in the form required in section
Petitioner calls our attention to Lynch v. Kelly,
"Section 974, Code of Civil Procedure, provides that: `any party dissatisfied with a judgment rendered in a civil action in a police or justice's court, may appeal therefrom to the superior court of the county, at any time within thirty days after the rendition of the judgment.' And the notice must state whether `the appeal is taken from the whole or a part of the judgment.'
"Section 891, Code of Civil Procedure, reads: `When a trial by a jury has been had, judgment must be entered by the justice at once, in conformity with the verdict.' And the judgment `must be entered substantially in the form required in section six hundred and sixty-seven. . . . No judgment shall have effect for any purpose until so entered.' (Sec. 893, Code Civ. Proc.)
"It seems to us that the appeal was prematurely taken and that the superior court did not acquire jurisdiction thereby.Montgomery v. Superior Court,
We see no escape from the conclusion reached in the above case.
Our attention has been called to the difference between section 939 of the Code of Civil Procedure and section 974 of the same code, the one providing that an appeal from a judgment in a court of record may not be taken until after the entry of judgment, while the time for an appeal from a judgment in a justice's court begins to run upon its rendition.
We think it is apparent from an examination of the section of our code relating to justices' courts, that a judgment therein is not "rendered" until it is "entered," or can legally be held to be "entered." There is no other way of "rendering" a judgment in such a court. (See secs. 891, 892, and 893, Code Civ. Proc.) It is in this sense that the word should be held to be used in section 974 of the Code of Civil Procedure. Doubtless it is the justice's duty to enter the judgment promptly. (Code Civ. Proc., sec. 891) But until he does so, there is no "rendition" of the judgment, in the sense used in section 974 If he refuse, he may be compelled to act. *334
Our conclusion upon the point discussed above makes it unnecessary to review the other questions presented by the record.
Let the writ be dismissed.
Angellotti, J., Lorigan, J., Sloss, J., Shaw, J., and Henshaw, J., concurred.