Clark v. Forbes

CONREY, P. J.

Appeal from judgment.

The plaintiff appeals from a judgment denying his application for a writ of review. The judgment sought to be reviewed was rendered by respondent Forbes as justice of the peace of Los Angeles township, in Los Angeles County, in an action wherein John E. Lacey et al. were plaintiffs and James D. Clark was defendant. That judgment was rendered on the twenty-fifth day of May, 1916. The petition for writ of review was filed in the superior court within thirty days thereafter, which therefore was within the time in which an appeal might have been taken from the judgment.

The writ of review does not lie to review a judgment from which an appeal may be taken. Appellant claims that he had no right of appeal of which he could take advantage, because by taking an appeal he would submit to the jurisdiction and the point upon which he relies is that the justice’s court did not have jurisdiction of the person of him, the said James D. Clark, in that action. The decisions cited and relied upon [by him are

In re Clarke,

125 Cal. 388, [58 Pac. 22];

Nisbet

v.

Clio Mining Co., 2

Cal. App. 436, [83 Pac. 1077];

Security Loan & Trust Co.

v.

Boston etc. Co.,

126 Cal. 418, [58 Pac. 941, 59 Pac. 296]. Those cases merely hold that an appeal involving the merits of an action carries with it a submission of the appellant personally to the jurisdiction of the court. They do not contravene the rule that a defendant may have the benefit of an appeal on questions of law alone, where he has appeared specially for the single purpose of objecting to the jurisdiction of the court over him as a party defendant, and where his appeal is confined to that one question. In

Olcese

v.

Justice’s Court,

156 Cal. 82, [103 Pac. 317], the supreme court said: “This court, has never recognized the right of a petitioner to review the judgment of a justice’s court after appeal taken and determined in the superior court. It has reviewed the judgment of a justice’s court only under such exceptional circumstances as those indicated in