52 Cal. 407 | Cal. | 1877
argued that it was a proceeding in equity, and that the Justice had no jurisdiction.
William J. Graves, for the Respondents.
The demurrers to the original and supplemental answers of the defendant John Wright Jr. should have been sustained. The attempted justification for the seizure and detention of the sheep, set up as a defense in these answers, is founded on proceedings commenced and prosecuted before a Justice of the Peace, under the Act of February 4th, 1874. (Statutes 1873-4, p. 50.) The plaintiff contends that the jurisdiction attempted to be conferred by the statute in question upon Justices’ Courts in this class of cases is essentially a proceeding in equity to enforce a lien, of which the District Courts have exclusive jurisdiction under the Constitution; and we think the point is well taken. The statute authorizes the owner or occupant of land to take up and safely keep, at the expense of the owner, any animals found trespassing thereon, and requires him immediately to give, notice to the owner, if known, provided he resides within six miles of the place of taking up. At any time after receiving the notice the owner, on proof of. his ownership, and tendering the amount of damages “ claimed,” and paying the expenses of keeping the animals, may demand a return of them; or if proceedings have in the meantime been commenced before a Justice of the District Court, he may give a bond with sureties for the payment of the damages and costs, and thereupon the possession shall be restored to him. But if no owner appears within two days to claim the animals, or if he fails to pay “ satisfactory ” damages, or if the owner is unknown, or lives
The case is not distinguishable on principle from People v. Mier, 24 Cal. 61, which has been approved in many subsequent cases.
There is also another ground on which the demurrer to the supplemental answer should have been sustained. In neither the original or supplemental answer is there any averment that a summons was issued or served as required by the statute; and unless this provision was complied with, the Justice had no jurisdiction to render the judgment set up in the supplemental answer. But the answer avers that the judgment was “ duly rendered,” and it is contended that this was sufficient under sec. .456 of the Code of Civil Procedure. That section provides that “in pleading a judgment or other determination of a Court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made." A party wishing to avail himself of a provision of this character must comply strictly with its terms. In exonerating him from an obligation which would otherwise be incumbent upon him, the statute prescribes the precise conditions on which he is to be relieved, and they must be strictly performed. In this case the averment is not that the judgment was duly “ given or made,” but that it was “ duly rendered,” and we ar,e inclined to think these are not equivalent terms. A judgment is duly “rendered” when it is duly pronounced and ordered to be entered. (Gray v. Palmer, 28 Cal. 416; Peck v. Cortis, 31 Ibid. 207; Geneilla v. Relyea, 32 Ibid. 159.) But a judgment duly “ made or given ” is a complete judgment, properly entered in the judgment-book, so that it may be pleaded in bar of another action. But whether this
Judgment reversed and cause remanded for a new trial.
Mr. Chief Justice Wallace did not express an opinion.