Himovitz v. Justice's Court

YORK, J.

An original application is made to this court in this case for writ of prohibition for the purpose of prohibiting the respondent, a justice of the peace, from hearing and deciding a case pending before him as such justice. The ease was within the jurisdiction of the Justice’s Court, and jurisdiction over the person of defendant had been legally obtained. A default had been duly entered in said case and a judgment thereon for plaintiff had been duly entered on January 17, 1924. The defendant in that action

[97]

mov'ed to set aside the default and judgment on January-30, 1924. Said justice granted said motion, “with the provision that defendant paid accrued costs up to the present date.” At the hearing of the motion and before the order was made, the defendant offered to pay the costs as required by the order, but plaintiffs’ counsel declined to inform him what the costs were, and defendant had no means of ascertaining what they were. Defendant thereupon filed an answer to plaintiffs’ complaint without paying the' costs, which the justice permitted him to do. The ease was then at issue. The answer remained on file without any objection by plaintiffs and without plaintiffs informing defendants what the costs were and' without moving to set the case for trial, until the nineteenth day of June, 1925, when the justice, on motion of plaintiffs and without notice to defendants, entered an order setting aside the order of January 30, 1924, and adjudging that the original judgment be “reinstated.” The defendant appealed from this “so-called judgment or order,” to the superior court. Plaintiffs made a motion to dismiss the appeal upon the ground that the purported appeal was from an order and not from a judgment, and that the superior court was without jurisdiction of the action. The superior court denied the motion and decided the appeal on questions of law alone. It was there held by the court that the so-called order of June 19, 1925, was in effect a judgment, erroneously rendered by the Justice’s Court. Therefore the judgment was reversed, and the case remanded to the Justice’s Court, to be tried. It is to prevent such trial that this proceeding has been brought here.

It is the contention of petitioners herein that the justice has no jurisdiction to try the case, and that the judgment on appeal has not settled the law of the case on that question, since (so they contend) the superior court was without jurisdiction of the subject matter of the attempted appeal.