Goodman v. Superior Court

HALL, J.

This is an original application for a writ of review, the purpose of which is to have it determined that the superior court exceeded its jurisdiction in refusing petitioner’s request for a jury trial, in a cause appealed to said court from a justice’s court, and in trying said cause without a jury, and in entering judgment against petitioner upon said trial notwithstanding his demand for a jury trial.

The petition shows that the superior court refused to allow petitioner a jury because of failure to comply with the rules of the court concerning the time within which the demand for a jury must be made.

The writ of review may not be used to correct errors, but can only be issued where the court, to which it may be directed, has acted without or in excess of its jurisdiction. The basis of petitioner’s contention in this case is that the court acted in excess of its jurisdiction in trying the case without a jury notwithstanding petitioner’s demand for a jury. It is sometimes a nice question as to whether a particular action of the court is mere error, or is in excess of jurisdiction; but in this state it has been decided that the denial of a jury trial in a case where a jury might be waived is error only, and not action in excess of jurisdiction.

{Ex parte

Miller, 82 Cal. 454, [22 Pac. 1113];

Powelson

v.

Lockwood,

82 Cal. 613, [23 Pac. 143].)

Both in criminal eases not amounting to felony, and in ■civil actions, the right of trial by jury may be waived. (Const., art. I, sec. 7.) In

Ex parte Miller,

82 Cal. 454, [22 Pac. 1113], in denying a writ of

habeas corpus,

the court said: “If a jury trial was denied, it was a mere error which could not be reached by

habeas corpus”:

and in

Powelson

v.

Lockwood, supra,

it was held that in refusing a jury to defendant charged with misdemeanor a justice court did not exceed its jurisdiction, but at most only committed error, for