259 P. 491 | Cal. Ct. App. | 1927
Petitioner applies for a writ of review for the purpose of having annulled a judgment of the respondent Superior Court rendered on the merits, after trial de novo, in an action brought before said Superior Court on an appeal from the justice's court taken on questions of law and fact. Petitioner's main contention is that there was no trial of the facts in the justice's court, and that therefore the appeal to the Superior Court was in effect one taken upon questions of law alone, whereunder the power of the Superior Court was limited to a reversal of the judgment and a remand of the cause to the justice's court for trial on the issues of fact tendered by the pleadings.
The action was commenced by one James Neary against petitioner to recover upon an assigned claim for real estate broker's commissions. The essential allegations of the complaint *463 were that petitioner authorized plaintiff's assignor, a duly licensed firm of real estate brokers, to sell his real property; that thereafter said brokers secured a purchaser, with whom petitioner entered into a written contract of sale, a copy of which was attached to and made a part of the complaint; that at the time of the execution of said contract petitioner accepted from the purchaser a deposit of four hundred dollars; and that, although said purchaser was ready, willing, and able to consummate the sale in accordance with the terms of the written contract, petitioner refused to do so.
Petitioner demurred to the complaint on general grounds, and the demurrer was overruled. Thereupon he filed an unverified answer denying "generally and specifically, each and every, all and singular, the allegations of said complaint." The cause then came on for trial before the justice, and petitioner stipulated orally "that the facts are the same as pleaded in the complaint," following which judgment was given in favor of petitioner, and the plaintiff appealed to the Superior Court on questions of law and fact. Thereafter the cause came on for trial on the merits before the latter court, without objection being made thereto by petitioner, and a second and similar stipulation was made by petitioner as to the facts; whereupon the Superior Court rendered its judgment granting unto plaintiff the relief prayed for in the complaint. The parties then filed a written stipulation waiving findings of fact and conclusions of law, and judgment for plaintiff was entered accordingly. At this stage of the proceedings petitioner's present counsel were substituted as his attorneys, and they made a motion for a new trial, which was denied. Execution was thereafter issued and levied on certain real property belonging to petitioner. This proceeding was then instituted.
[1, 2] Conceding, as petitioner contends, that when an action is commenced in the justice's court there must be an adjudication of the facts therein before a trial de novo may be had and a judgment rendered on the merits in the superior court (Myrick
v. Superior Court,
[3] Trials in the justices' courts may be had upon issues of law and upon issues of fact (Code Civ. Proc., secs. 878, 881, 882). An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof, and must be tried by the court (Code Civ. Proc., secs. 879, 881). "An issue of fact arises — 1. Upon a material allegation in the complaint controverted by the answer . . ." and "must be tried by a jury unless a jury is waived, in which case it might be tried by the court" (Code Civ. Proc., secs. 880, 882). [4] The action here came on for trial before the justice upon the issues of fact joined by the allegations contained in the complaint, and the denials thereof contained in the answer. By reason of such controversion of facts plaintiff was required to substantiate the allegations of his complaint by proof, which is defined by section
[6] The facts being thus established after trial the justice was called upon to render judgment, and under the *465
law governing the procedure in justices' courts the rendition of a judgment on the merits was mandatory. As declared by section
In the present case, therefore, after the justice had proceeded with the trial of the facts pleaded in the complaint, and the same had been proved by the judicial admissions of the defendant, it was imperative that he render a judgment upon the merits, for being without legal authority to dismiss the action by nonsuit he could do nothing else; and the fact that such judgment was grounded upon judicial admissions rather than upon oral testimony or any other *466
kind of legal proof manifestly did not change the nature of the trial from one of fact to one of law, nor affect the character of the judgment as being one upon the merits. As said in Freeman on Judgments: "A judgment is on the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based on the ultimate facts or state of the facts disclosed by the pleadings and evidence upon which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. But it need not be the result of a trial or hearing on controverted facts, if the parties have had a legally sufficient opportunity to present the merits of the controversy and have waived or otherwise lost the right to such a hearing." (2 Freeman on Judgments, p. 1543). Even though petitioner's stipulation as to the facts be considered as having nullified the denials in his answer, and consequently that the judgment be deemed to be one rendered upon the pleadings, it nevertheless was a judgment upon the merits (Takekawa v.Hole,
The cases cited by petitioner in support of his contention do not reach the point involved here. They either are essentially different in their facts from the present one or declare legal principles which are foreign to the issue herein. For instance, in Null v. Superior Court, supra, and Myrick v. SuperiorCourt, supra, there was no adjudication of the facts whatever by the justice, a judgment of dismissal being entered in each action after the justice had refused to entertain jurisdiction. It was held that under such circumstances the superior court, in the exercise of its appellate jurisdiction, was without power to try the action de novo. In People v. County Court,
[8] Furthermore, and aside from the merits of the legal questions presented, we are convinced that petitioner, having voluntarily participated in the trial de novo in the superior court, without objection being made to the jurisdiction of that court to try the action anew, and having entered into a second stipulation therein as to the facts, is now precluded from attacking the judgment rendered therein on the merits. As held inStehlin v. Superior Court,
For the reasons hereinabove set forth the proceedings sought to be annulled are affirmed.
Tyler, P.J., and Cashin, J., concurred. *468
A petition by petitioner for a rehearing of this cause was denied by the district court of appeal on November 14, 1927.