Ballerino v. Superior Court

SMITH, J.

Order for the defendant court to show cause why a writ of

certiorari

should not be issued reviewing its action “in setting aside and vacating a certain judgment rendered on the twenty-seventh day of December, 1905,” in the ease of

Crawford

v.

Ballerino,

appealed from a justice’s court-In the certified copy of the judgment-roll of the ease presented by the defendant two judgments appear: The one entered December 29, 1905, in favor of the plaintiff for the sum of $1 and costs; the other entered January 8, 1906, also in favor of the plaintiff, for the sum of $200 and costs. The former judgment contains the finding that the allegations of the complaint are true and those of the answer untrue, and the conclusion of law that the plaintiff is entitled to the judgment rendered, i. e., for the sum of $1 and costs. The later judgment, it appears from the recitals therein, was entered on the motion of the plaintiff to vacate the earlier judgment, on the ground that the same was not consistent with or supported by the findings of fact, and to enter the proper judgment.

[760]

Upon the facts thus appearing, there can be no doubt that these proceedings of the court were within its jurisdiction. (Code Civ. Proc., sec. 663;

Galvin

v.

Palmer,

134 Cal. 426, [66 Pac. 572];

Colton L. & W. Co.

v.

Swartz,

99 Cal. 278, [33 Pac. 878];

Tyrrell

v.

Baldwin,

67 Cal. 1, [6 Pac. 867].) But the contention of plaintiff is that another and different judgment from that of December 29th was rendered by the court on the 27th, as evidenced by an opinion of the court dictated on that day and signed and filed by the judge either on that or the following day, and by an entry in the minutes of the court, and that it was not within the jurisdiction of the court to vacate this order. But it is a familiar principle that the record or judgment-roll cannot be impeached for want of jurisdiction by evidence