Moyer v. Superior Court

BARNARD, P. J.

The petitioner, as plaintiff, brought an action in the police court of the city of Fresno against one Perry D. Cash, as defendant, seeking damages in the sum of $665.75, alleged to have been suffered as the result of an automobile collision which took place near Mendota, some miles outside of the city of Fresno. The defendant Cash answered and after trial of the issues a judgment was entered in said police court in favor of this petitioner in the sum of $315.75, with costs.

Thereafter, the defendant Cash moved to vacate and set aside said judgment and to dismiss the action upon the ground that it was not within the jurisdiction of that court. Among other things, it appeared at the hearing of this motion that the defendant Cash was not a resident of the city of Fresno. An order was then entered in the said police court vacating and setting aside the judgment, denying the motion to dismiss the action and transferring the action to the Justice’s Court of the Third Township of the County of Fresno. This petitioner appealed from that order to the Superior Court of the County of Fresno and, after a hearing there, that order was affirmed by that court.

The petitioner then brought this proceeding to review this order of the respondent court, his contention being that his

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action in the police court had been terminated by the entry of a valid judgment in his favor; that after the entry thereof that court had no jurisdiction to set aside the judgment; that the respondents exceeded their jurisdiction in affirming the order setting aside the judgment; and that there is no appeal from this order of affirmance.

Under well-settled rules, a writ of review is directed only to the question of jurisdiction and such a writ will lie only where there is no right of appeal. (See. 1068, Code Civ. Proc.) While there is no appeal from the order made by the respondent court the question remains whether that court had jurisdiction to pass upon the appeal thus taken thereto by the petitioner from the order of the police court.

It is conceded that in the original action the police court obtained jurisdiction over the person of the defendant therein, he having made a general appearance. A question arose, however, as to whether that court had jurisdiction over the subject-matter of the action. It is unnecessary to decide that question here. Either that court had such jurisdiction or it did not. The petitioner strongly contends that it had jurisdiction, since he desires to sustain the judgment he obtained. His contention is that although that court had jurisdiction of the cause and of the parties it attempted to divest itself of such jurisdiction by setting aside the judgment, and that it exceeded its jurisdiction in making that particular order. If in making that order the police court exceeded its jurisdiction and if, further, there was no right of appeal from such order,