Armantage v. Superior Court
Before: Gray, Smith
Synopsis
Certiorari—Judgment upon Appeal from Justice’s Court^-Questions of Law and Fact—Trial by Justice without Legal Notice.—Certiorari will not lie to review a judgment of the superior court rendered after trial therein, upon an appeal from a justice’s court taken upon questions of law and fact, notwithstanding the trial was had in the superior court ,without the presence of the appellant, and without the notice required by section 850 of the Code of Civil Procedure.
Id.—Jurisdiction of Justice’s Court not Involved—Error in Superior Court not Reviewable.—The jurisdiction of the justice’s-court is not involved in the petition for certiorari to review the judgment of the superior court, and conceding, without deciding, that it was error for the superior court to try the case upon appeal, its action in overruling an objection thereto was within its jurisdiction, which involves the power to decide wrong as well as right,
Id.—Original Jurisdiction of Superior Court.—Where an appeal is taken from a justice’s court on questions of fact or questions of law and fact, the superior court has original jurisdiction to try the case without a statement if there was any trial of issues in the-justice’s court, with or without jurisdiction.
Opinion — Gray
GRAY, P. J.
This is an application for a writ of
certiorari,
otherwise called the writ of review.
The facts are, that E. B. Mutter commenced an action in the justice’s court against Armantage, the plaintiff herein. Summons was duly served on Armantage, who thereafter demurred to the complaint, and on said demurrer being overruled, answered. The case was thereafter set down for trial. The notice that the case had been set for trial was not served
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like a summons, as is required by section 850 of the Code of Civil Procedure, but was served by mail only. Armantage did not appear at the time fixed for trial, and the justice at said time tried the case in the absence of Armantage and rendered judgment against him. Thereafter Armantage duly appealed to the defendant, the superior court, on questions of both law and fact. The ease was set for trial in the superior court. The appellant appeared and objected to a trial, and asked that the judgment of the justice be reversed and the cause remanded to the justice’s court. The superior court refused to make such order, but proceeded, against the objections and exceptions of the appellant, Armantage, to try the issues of fact, and rendered judgment against Armantage for two hundred and fifty dollars and costs.
It is contended that the superior court had no jurisdiction on the appeal to do anything in the case except reverse the judgment and order the case back to the justice’s court in accordance with the demand of the appellant.
“When a party appeals to the superior court on questions of fact, or on questions of both law and fact, no statement need be made, but the action must be tried anew in the superior court.” (Code Civ. Proc., sec. 976.)
The above section is perfectly intelligible, and if it were to have a literal construction it would seem that the appeal having been taken on questions of both law and fact, the court in trying the ease anew pursued the only course left open to it under the statute. But it is said that the supreme court has held that where no trial of the case has been had in the justice’s court, it is the duty of the superior court to reverse the case for error of law and order the ease back to the justice’s court for further proceedings. Such seems to be the rule laid down by the supreme court, where the appeal was taken on both questions of law and fact.
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