Harry H. Culver & Co. v. Superior Court

STEPHENS, J.

The petitioner asks that this court command the superior court to proceed with a certain cause pending therein. In addition to the superior court, the

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judge thereof, who has handled the cause so far, and the marshal and clerk of the Municipal Court of Los Angeles, are made parties respondent.

The alternative writ issued and respondents have demurred to the petition on the ground that the facts stated therein do not entitle petitioner to relief. This litigation began with an action in the said municipal court entitled

Jens Henry Jensen, Plaintiff,

v.

Harry H. Culver & Company, Defendant, a Corporation

(petitioner herein), in which the plaintiff asks the return of $1450 theretofore paid defendant as part payment on a contract to purchase real estate. The action is framed after the fashion of the common count. The complaint is denominated “Complaint—Money Had and Received” and sets up as an exhibit a notice to the defendant that plaintiff rescinds “such purchase” and offers to restore everything of value received and demands return of money paid, “Because of the willful and deliberate fraud and deception practiced upon me by your company in inducing me ... to enter into a contract for the purchase of” certain described real estate. It may be noted that neither the complaint nor the exhibit specify any particular as to the fraud and deception allegedly practiced upon the said plaintiff. This notice (exhibit “A” to complaint and made a part thereof) closes as follows: “I am giving you this notice preliminary to the institution of suit to compel the refund of my money in the event you see fit to disregard this notice.” The data furnished us in this proceeding indicates that this municipal court action proceeded to trial and verdict, and judgment for plaintiff before jury and judge, upon the complaint and a written answer amounting to a general denial.

No demurrer or objection to the taking of testimony appear to have been injected into the case.

We here break the logical outline of the facts to remark that this latter circumstance, as it occurs to us, vitally affects the claim, long after made by said defendant, that the case is equitable and outside the jurisdiction of the municipal court. Of course silence cannot confer jurisdiction of a subject matter, but it can and we think herein does preclude this belated claim that the cause was not in fact what it was tried as, to wit: a money had and received case following an accomplished rescission.