Donner Finance Co. v. Municipal Court

[113]

GRAY, J.,

pro tem.

The Municipal Court of the City and County of San Francisco, Honorable A. J. Fritz, a judge thereof, and R. W. Dennis, its clerk, appeal from a judgment ordering the issuance of a writ of prohibition which was granted after their demurrer to respondents’ petition had been overruled. The demurrer admitted the facts pleaded in the petition but questioned their legal sufficiency to entitle respondents to the writ. Our decision, therefore, depends upon the correctness of the ruling on the demurrer. The petition avers these facts. Respondents had filed in the Municipal Court a complaint alleging that Geneva Manufacturing Co., Ltd., a corporation, had executed and delivered to them its promissory note; that J. A. Seaman, as security for the note, had executed and delivered to them a chattel mortgage, and that the principal of the note, together with interest and attorney’s fees, was due, owing and unpaid. The complaint prayed for the amount due on the note and for a foreclosure of the mortgage. Both these defendants had answered. The answer of J. A. Seaman, which alone is of present concern, admitted the execution and delivery of the note, and his execution and delivery, as guarantor of the note, of the chattel mortgage, but denied nonpayment of the note. It also affirmatively pleaded payment of the note, the substitution, by novation, of the note of a third party for the original note and his exoneration, as guarantor, by material changes in the terms of the note. It prayed for the cancellation of the chattel mortgage and for costs. This action had been duly set for trial, but two days before the day designated petitioners’ attorneys had filed with the clerk of the Municipal Court a written dismissal which he had entered in his register. Notwithstanding such dismissal and in petitioners’ absence, the judge of the Municipal Court had tried the action upon evidence produced by the defendants and had rendered his decision in their favor for costs and the cancellation of the chattel mortgage. Thereupon, judgment had been entered in accordance with the decision. Thereafter those defendants have threatened to cause execution to issue, and appellants have threatened to issue the same.

Respondents argue that under subdivision 1 of section 581 of the Code of Civil Procedure, they had the absolute right