Westinghouse Electric & Manufacturing Co. v. Justice's Court

THOMPSON, J.

This action is submitted upon the petition for the writ of prohibition and the brief in behalf of petitioner, there having been no appearance for the respondent. From the petition it appears that an action was commenced in the respondent court by Otto E. Koepke and Harry Koepke, copartners doing business under the name

[760]

and style of Corcoran Electric Company, against the petitioner herein to recover the sum of $299.99 as damages. And it also appears that the summons in the action was attempted to be served upon Carl Heise, in the city and county of San Francisco, he being the designated agent and person upon whom process might be served, and that the action is not one falling within any of the exceptions noted in section 848 of the Code of Civil Procedure wherein the summons may be served outside of the county in which the court is situated. The petition further recites that a motion was made to quash the service of summons on the ground that the same was void under that section, but that petitioner’s motion was denied and the Justice’s Court of Corcoran Township, County of Kings, will, unless prohibited, proceed in the action.

Under this state of facts the service of summons outside of Kings County was void, so that the sole question presented here is as to whether or not prohibition will lie to restrain the Justice’s Court from exercising jurisdiction over the person of the petitioner, when in fact jurisdiction has not been legally acquired.

We think it is the rule that where the lack of jurisdiction is as to the subject matter of the action, prohibition will not lie, for the reason that there is an adequate remedy at law by an appeal. To that effect are

Hamberger

v.

Police Court,

12 Cal. App. 153 [106 Pac. 894, 107 Pac. 614], and

Simpson

v.

Police Court,

160 Cal. 530 [117 Pac. 553].