Will v. Sinkwitz

41 Cal. 588 | Cal. | 1871

By the Court, Rhodes, C. J.:

An action was commenced in a Justice’s Court for the recovery of two hundred and ninety-nine dollars and ninety-nine cents, for the damages occasioned by certain wrongful and negligent acts of the defendant, mentioned in the complaint; and judgment having been rendered for the plaintiffs, the defendant appealed to the County Court. A trial de 'novo was had in the County Court, and that Court rendered judgment for the plaintiffs for three hundred dollars. A writ of certiorari was issued to the County Court by the District Court of the Fourth District; and on the hearing of the cause, the District Court modified the judgment of the County Court by striking therefrom the sum of one dollar. An appeal was taken to this Court from the judgment of the District Court; and this Court reversed the order of the District Court, and remanded the cause, with directions to vacate the judgment of the County Court. On the return of the remittitur, the District Court ordered that the judgment of the County Court be set aside and vacated. This order is followed by a formal judgment, whereby, “by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged, and decreed” that the plaintiff's ‘^take nothing by this action as against William Sinkwitz, defendant,” and that the defendant recover his costs. A certified copy of the decision of this Court, and of the order of the District Court, having been filed in the County Court, that Court ordered that the judgment theretofore entered in that Court be set aside and vacated. Three days prior to the entry of that order the plaintiffs had moved for judgment for two hundred and ninety-nine dollars and costs, on the pleadings and papers in said cause; and about one month subsequent thereto the County Court gave judgment for the plaintiffs for that sum and costs. The defendant thereafter procured from the District Court of the Fifteenth District, a certiorari to the County Court; and on the hearing thereof the District Court ordered that “the judgment of the County Court, and all the proceedings in that Court, in the action on which said judgment was entered, be and the same is hereby set aside, vacated, and annulled.” This is followed by a formal judgment: “Wherefore, by reason of the law and the premises, it is ordered, adjudged, and decreed,” that the judgment in the County Court be set aside, vacated, and annulled, and that the plaintiffs “take nothing by this action ” as against the defendant, and that the defendant recover his costs. Soon after the entry of that judgment, the County Court, on the plaintiffs’ motion, placed the cause on the calendar for trial; and a trial having been had, the County Court rendered judgment for the plaintiffs for one hundred and seventy-five dollars and costs. The cause now before this Court is a certiorari issued by this Court, to bring up for review the last mentioned judgment of the County Court. This is a succinct history of this interesting case.

The only difficulties there are in this case, arise from the inattention of counsel in permitting the Clerk of the District Court, after the Court had pronounced its judgment, to enter up a judgment which did not accord with that which had been rendered—the Clerk, doubtless, using one of the common blank forms, without noticing that it was not the appropriate form. The Fourth District Court, in pursuance of the order of this Court, ordered the judgment of the County Court to be vacated. That was the extent of the order; but the District Court had no authority, under the remittitur from this Court, to adjudge that the plaintiffs take nothing by this action. Had this Court intended that the District Court should render judgment for the defendant, in the action in the County Court, this Court would have so expressly ordered; and reading the whole judgment, it does not appear that the District Court ordered judgment to be entered for the defendant. The result of the judgment was, to leave the cause in the County Court, iff the condition in which it stood when the papers were filed therein on appeal from the Justice’s Court.

The judgment which was rendered by the County Court, on the plaintiffs’ motion, without a new trial," was clearly erroneous; but whether certiorari was the proper remedy to correct the error, is not a question which we can consider on the record now presented.

It is apparent from what has already been said, that when the first judgment of the County Court had been vacated, as well as when the second judgment—that which was rendered on the plaintiffs’ motion—had been vacated, it was proper that the cause should be placed on the calendar for trial. The annulling of the judgment made a new trial indispensable, unless the judgment of the Fifteenth District Court amounted to a dismissal of the action. The judgment was, that the judgment in the County Court be vacated. The subsequent formal entry of the Clerk cannot be construed as giving the judgment a different effect—as changing entirely its nature. If the Court, on certiorari, may order the inferior tribunal to dismiss the action, it is clear that the statute does not authorize it, after vacating the judgment, to order a judgment to be entered for the opposite party. It is unnecessary, however, to determine whether such an order would be void; for, looking at the whole judgment, we construe this order to be a mere clerical blunder, and hold that it did not have the effect to add to or change the judgment, which it clearly appears was rendered by the Court. It did not directly dismiss the action.

The first point of the petitioners is that the judgment of. this Court was virtually a dismissal of the action. It is apparent from what has already been said, that the judgment was not intended to have, and did not have, that effect.

The next point is that the subject matter of the action is a nuisance, and that, therefore, the Justice’s Court had no jurisdiction of the cause of action. This is not an action to prevent or abate a nuisance, of which the County Courts, as well as the District Courts, have jurisdiction, but is an action for the recovery of damages occasioned by the alleged tortious acts of the defendant. Where the acts complained of amount to a nuisance, for which the person injured may have his action to abate the nuisance, he is not limited to that remedy, but may sue to recover the damages sustained by the wrongful acts of the defendant.

There is nothing in the petitioners’ third point whiqh requires further notice.

Writ dismissed.