Green v. Rogers

Justice’s Court—Demurrer After Time to Answer—Default— Promise of Justice—Trial Without Notice—Ineffective Appeal—Improper Writ of Review.—Where it appears that, on the fifth day after service of summons from a justice’s court requiring answer in three days, defendant filed a demurrer, and his default was entered on the same day, and that nine days thereafter the justice promised defendant to take no action during his absence on vacation, but entered no order to that effect, and the trial was had four days thereafter, in defendant’s absence, without notice to him, and judgment was entered, without passing upon the demurrer, after knowledge of which defendant took an ineffective appeal therefrom, it is held that, after the time for appeal had expired, the superior court erred in granting a writ of review to annul the judgment and ordering the justice to pass upon the demurrer.

Id.—Presumption as to Time of Filins Demurrer—Failure to Aver Filing Before Default.—Since it appears that the filing of the demurrer and the entry of default took place on the same day, and it is not alleged whether the filing of the demurrer was prior or subsequent to the entry of default, and it was clearly filed after the expiration of the time to answer, it must be presumed that it was filed after the entry of the default, and if so filed it conferred no right without first having the default vacated, which does not appear to have been asked for or entered.

Id.—Effect of Filing After Default—Notice of Trial not Required.—The subsequent filing of the demurrer, after default, did not prevent the court from setting the case for trial, and trying it without notice to defendant, since, being in default, he was not entitled to such notice.

Id.—Promise by Justice—Notice to Plaintiff not Shown—Right to Speedy Trial.—Since it does not appear that the plaintiff, who had entered the default of the defendant, had any notice or knowledge of the verbal promise of the justice to the defendant, and the action being one for the summary restitution of leased property, the plaintiff had the right to a speedy trial thereof, in the absence of the defendant, after proper proof of the entry of his default.

Id.—Conditions of Writ of Review—Absence of Remedy by Appeal —Loss by Laches a Bar to Writ.—The writ of review issues only where there is no remedy by appeal which has existed, and where the petitioner has failed to avail himself of that remedy, or the right of appeal has been lost by his laches, so that the time in which he might have taken an appeal has thus gone by, the remedy by the writ of review is not open to him.

Id.—Office of Writ Limited to Annulment.—Section 1074 of the Code of Civil Procedure plainly limits the power of the court, upon a writ of review, to the determination of the single question whether the inferior tribunal has exceeded its jurisdiction or has regularly pursued its aúthority, and where it has not regularly pursued its authority, the writ should be limited to the annulment of its proceedings, and should not direct any affirmative action to be taken by the inferior tribunal.