Burlingame v. Justice's Court

California Supreme Court May 28, 1934 No. S. F. 15042Published

Before: Shenk

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Holding. A justice's court order substituting a non-party as a judgment debtor is void for lack of jurisdiction, and a person directly and prejudicially affected by such an order is a 'party beneficially interested' entitled to seek a writ of certiorari when no right of appeal exists.

Issues

Whether a justice's court has jurisdiction to substitute a non-party as a judgment debtor after final judgment.
Whether a non-party affected by a void order has a right of appeal under the applicable statute.
Whether a non-party affected by a void order qualifies as a 'party beneficially interested' entitled to seek a writ of certiorari.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The appellant concedes that the justice’s court was without jurisdiction “to make an order substituting R. A. Burlingame as the judgment debtor in the place and stead of 0. A. Burlingame, the judgment debtor named in said judgment””

“A person directly and prejudicially affected by an order such as we have on the record before us should be entitled to the writ.”

SHENK, J.

This is an appeal from a judgment of the superior court in a

certiorari

proceeding annulling an order of the justice’s court. The matter was submitted to the court on a demurrer to the petition. The effect of the demurrer was to adopt as the return to the writ the facts alleged in the petition.

(Stoner

City Council of Los Angeles,

8 Cal. App. 607 [97 Pac. 692].) The facts set forth in the petition are therefore, uncontroverted and are as follows: Charles Kaufman commenced an action to recover rent in the Justice’s Court of the City of Berkeley (having a population of more than 30,000), naming O. A. Burlingame and Mrs. O. A. Burlingame, father and mother of the petitioner, R. A. Burlingame, as defendants. The affidavit of service showed that a copy of the summons and complaint had been served on O. A. Burlingame. He failed to appear, his default was entered and the court rendered judgment against him for $251 and costs, which was the amount sought to be recovered. A copy of the summons and complaint was also handed to R. A. Burlingame, the son, who made no appearance and no return of service of summons upon him appears to have been made. Seventy-eight days after the entry of the judgment the plaintiff in said action served on R. A. Burlingame a notice of motion for an order substituting him as the judgment debtor in said action. The motion was granted. An order was made substituting R. A. Burlingame as the judgment debtor in said judgment and an execution against him was threatened. No appeal from the order was taken or attempted. There

[73]

after, R. A. Burlingame filed his petition in the superior court to have the order of substitution annulled on the ground that the justice’s court had exceeded its jurisdiction, and that the order was void. The superior court entered judgment annulling the order, hence this appeal.

It further appears from the petition that R. A. Burlingame was not named as a party to said action; that O. A. Burlingame, the father, was sought by the plaintiff to be sued in said action, and that R. A. Burlingame was in no way interested therein.

Burlingame v. Justice's Court

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SHENK, J.

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