Dunn v. Justice's Court

California Court of Appeal Jan 15, 1934 No. Docket No. 750.Published

Before: Barnard

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Holding. A writ of prohibition cannot be used to challenge a court's jurisdiction after a final judgment has been entered, as the writ is intended for preventive relief rather than reviewing completed proceedings. Furthermore, a defendant who combines a jurisdictional challenge with a denial of the merits of the claim may be deemed to have made a general appearance.

Issues

Whether a writ of prohibition is available to challenge jurisdiction after a final judgment has been entered.
Whether the appellant's letter to the justice of the peace constituted a general appearance by combining a jurisdictional objection with a denial of the merits.

Disposition. Affirmed; appeal from order dismissed.

Quotations verified verbatim against the opinion

“The writ of prohibition is designed to be used as a method of securing preventive relief and not by way of reviewing proceedings already completed.”

“It is well settled that ‘if a defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that”

BARNARD, P. J.

The appellant, who is an attorney, was named as a defendant in an action filed in the Justice’s Court of the Sixth Township in the County of Kern, which action was based upon certain services claimed to have been rendered to the appellant by two attorneys in Bakersfield. The complaint in that action alleged that the contract, upon which it was based, was entered into in the township named, but did not allege that the contract was in writing. The appellant was served with summons in the county of Ala

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meda on March 20, 1931. On May 21, 1931, he moved for an order quashing the purported service of summons and vacating the judgment which had been entered, which motion was denied. On June 15, 1931, he filed in the Superior Court of Alameda County a petition for a writ of prohibition asking that the respondent court and justice of the peace be prohibited from taking any other proceedings in connection with or based upon the judgment, by execution or otherwise. An alternative writ of prohibition was issued and on the return day the respondents filed a demurrer to the petition and moved for a change of venue to the Superior Court of Kern County, which motion was granted. The demurrer to the petition came on for hearing on August 17, 1931, and the demurrer was sustained without leave to amend. Judgment of dismissal was entered, from which judgment this appeal is taken. The notice of appeal also purports to appeal from the order of the Superior Court of Alameda County granting the motion for a change of venue to the County of Kern.

The first question to be consideied is whether a writ of prohibition will lie under these circumstances. It is well settled that this writ cannot be resorted to when there is a plain, speedy and adequate remedy at law and that it will not issue to restrain an act which does not involve the exercise of judicial functions.

(Valentine

Police Court,

141 Cal. 615 [75 Pac. 336].) Formerly there was some conflict in the decisions with respect to the right to raise the question of jurisdiction by a writ of prohibition in view of a subsequent right of appeal. In

Dunn v. Justice's Court

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BARNARD, P. J.

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