Nelson v. Thomas

[110]

BURNELL, J.,

pro tem.

This case is before us on respondent’s motion to dismiss the appeal because of lack of jurisdiction in this court. The action was commenced, tried and determined adversely to' the defendant marshal of the Municipal Court of the city of Los Angeles in the last-named tribunal. From the judgment of that court awarding the plaintiff $510.90, costs and interest, the marshal appealed to the Superior Court, where the judgment of the Municipal Court was affirmed. From such judgment of affirmance the defendant marshal has appealed to this court.

“ Whether an appeal to this court lies from a judgment of the superior court affirming, modifying or reversing a judgment of the municipal court . . . depends upon where the cause of action arose as disclosed by the record—whether inside or outside the limits of the incorporated city where the municipal court is situated”

(Johnston

v.

Wolf,

208 Cal. 286 [280 Pac. 980]), if, therefore, the cause of action herein arose in the city of Los Angeles an appeal does not lie to this court and the judgment of the Superior Court was final; if it arose elsewhere within the jurisdiction of the Municipal Court this court has jurisdiction to entertain the appeal. The only question presented by the motion therefore is: Where did the cause of action arise?

There is no dispute as to the facts as stated in the affidavit filed in support of the motion and in the findings of the Municipal Court. They are as follows: The respondent resides in the township of Beverly Hills, which we take judicial knowledge is outside of the corporate limits of the city of Los Angeles

(Johnston

v.

Wolf, supra).

In the latter part of February, 1927, one of the marshal’s deputies called at respondent’s residence and attached the latter’s automobile pursuant to a writ of attachment issued out of the Municipal Court in an action brought by a collection agency against him. Respondent, in lieu of a bond on release of attachment and to prevent the taking of his automobile under the writ, then and there paid to the marshal, through the deputy, the sum of $510.90 in cash. Although the money was received by the marshal in Beverly Hills township for the sole purpose of securing the release of the attachment and not in satisfaction or settlement of the claim sued on, he took the money to his office in the city