McAllister v. Tindal

ALLEN, J.

This action was brought in a justice’s court to recover a judgment for personal services and rent. An answer was filed, which, while not controverting the facts of the complaint, denied indebtedness, and by way of further answer alleged that the determination of the action would necessarily involve title to real property. This opinion in the answer was not supported by any statement of fact. The justice certified the ease to the superior court, which court, on motion, remanded the cause to the justice for trial. Before such order of remand, a motion was interposed in the superior court, supported by affidavit, demanding a change of the place of trial to the city and county of San Francisco, being the county in which defendant resided. The court refused to grant a change of the place of trial, from which defendant appeals.

The verified answer filed in the justice’s court did not conform to the requirements of section 838 of the Code of Civil

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Procedure. The mere statement of the opinion of the affiant that the title to real estate would be brought into issue on the trial is not sufficient. Pacts should be stated from which such conclusion would follow.

The action of the justice in certifying the case was unauthorized, and the case was therefore not legally before the superior court for determination.

(Arroyo Ditch Co.

v.

Superior Court,

92 Cal. 47, [27 Am. St. Rep. 91, 28 Pac. 54].) The court having no jurisdiction of the action, it would of course follow that there was no error in denying the motion to change the place of trial.

Order affirmed.

Gray, P. J., and Smith, J., concurred.