Colthurst v. Justice's Court

THOMPSON (R. L.), J.

This is an appeal from a judgment denying a petition for a writ of review.

The record on appeal shows that the petitioner filed against Robert II. and Lea Lindsay, husband and wife, in the Justice’s Court of Vallejo township, Solano County, a complaint based upon an account stated; that process was

[147]

duly served upon the defendants, who failed to appear or answer, and judgment was thereupon entered against them for the sum of $165.89. The plaintiff forthwith served upon the defendants notice by mail of the rendering of judgment. This notice did not conform to the requirements of section 893 of the Code of Civil Procedure for the reason that the notice was not “signed by the justice.” The docket shows that a subsequent notice was given as follows: “Sept. 15, notice of decision served on defendants by post office at request of defendants.” September 19, 1927, the defendants served and filed in the Justice’s Court a notice of motion, supported by affidavits of merits, to vacate the default judgment. This motion was actually presented to the court on September 28th, and over objection on the part of plaintiff on the ground that the court was without jurisdiction, the motion was granted and the default judgment was set aside. The Justice’s Court was without jurisdiction to grant this motion. The mere filing of the notice of motion for relief was not sufficient. It is necessary that the motion be actually made to the court within the ten days’ limitation of time prescribed by law.

(Spencer

v.

Brcmham,

109 Cal. 336 [41 Pac. 1095] ;

Wheelock

v.

Superior Court,

67 Cal. App. 601 [227 Pac. 931].) A writ of

certiorari

was thereupon filed in the Superior Court of Solano County.

The petition which was filed in that court recited all of the proceedings of the Justice’s Court, upon which the judge signed a peremptory order directing the justice of the peace to forthwith certify the record of proceedings in his court to the Superior Court, and restrained the Justice’s Court from further proceedings pending the hearing for review. None of the essential facts was controverted. Subsequently the petition for a writ of review was heard in the Superior Court and on October 4, 1928, it was finally disposed of by the following ruling: “Ordered, in the above entitled cause, that the writ be and the same is hereby discharged.” This appeal from that final order was thereupon perfected.