Richmond v. Superior Court

THE COURT.

Application for writ of

certiorari

to review order of superior court remanding to justice court a case of unlawful detainer which had been certified up by the justice court on the ground that title to real property was involved in the issues to be tried.

A former application was denied by this court because the proceeding was directed to the judge of the superior court instead of to the tribunal itself. It was not intended by the opinion then filed to determine anything but who were the proper parties to the proceeding, but in assuming the position of the petitioners for the purpose of deciding this matter language was used which appears to determine the right to the writ upon the merits. The language thus inadvertently used cannot prejudice the parties not then before the court, and cannot foreclose them from presenting the question anew, or preclude this court from determining it as if the former opinion had not been rendered.

The complaint in the action before the justice court alleges facts showing the relation of landlord and tenant to exist between the plaintiff and defendants (petitioners here), a verbal lease, thirty days’ notice to terminate the tenancy, and thereafter three days’ notice to quit and surrender up possession of the premises. Rent for one month at $20 and damages in the sum of $100 are claimed. The verified answer denies that defendants are, or ever have been, tenants of plaintiff, denies the latter’s ownership and right to possession of the premises, and avers that defendants hold possession under a contract of sale, the conditions of which have not yet been performed.

While justices’ courts are prohibited from receiving evidence upon any question which involves the title or possession of real property, or to try any issue presenting such a question, and upon a verified showing being made that such a question is necessarily involved in the determination of the

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action, are required to certify the case to the superior court, the same section of the code which requires this to be done contains a proviso, “that in cases of forcible entry and detainer, of which justices’ courts have jurisdiction, any evidence, otherwise competent, may be given, and any question properly involved therein may be determined.” (Code Civ. Proc., sec. 838.)