Karry v. Superior Court

This is a proceeding in certiorari, originally commenced in the district court of appeal for the third district, and transferred to this court after decision by that court.

The purpose of the proceeding, as stated in the prayer of the petition for certiorari, was to annul a judgment of the superior court of San Joaquin County, given and made in a certain action pending therein on an appeal from a justice's court of one of the townships of said county, in which action one Fannie Fieg was the plaintiff, and the petitioners herein were the defendants. The action was one within the jurisdiction of the justice's court, being for the sum of $295.75 for and on account of costs incurred by Fanny Fieg in a certain *Page 283 action theretofore begun and prosecuted by petitioner Gjurich against her in the superior court of said county, and damages by reason of an attachment levied on her property in said action, and being on the bond or undertaking given for such costs and damages in said action by said petitioner and his co-petitioners, the sureties on such bond. The justices' courts have jurisdiction "in actions upon bonds or undertakings conditioned for the payment of money, if the sum claimed does not amount to three hundred dollars, though the penalty may exceed that sum." (Code Civ. Proc., sec. 112, subd. 5.) It is not questioned that the justice's court acquired jurisdiction of the persons of the defendants in such action, that they appeared therein and presented their defense to the action, that the justice's court gave its judgment in favor of Fanny Fieg, the plaintiff therein, that the petitioner herein, defendants therein, regularly appealed from such judgment to the superior court of San Joaquin County, that the action was regularly tried in said superior court on such appeal, and that said superior court gave jugment on the merits in favor of said Fanny Fieg and against these petitioners for the sum of $145.71.

The claim that this judgment was in excess of the jurisdictionof the superior court, for of course it is not claimed thatcertiorari will lie unless such jurisdiction has been exceeded, is based solely on the following facts which are alleged to exist, and which, for all the purposes of this proceeding, may be conceded to exist. The judgment of the superior court in the former action of Gjurich v. Fieg was against the plaintiff and in favor of said Fieg for her costs, taxed at $145.71. This $145.71 was the money said Fieg was suing to recover in her justice's court action against petitioners. Prior to the commencement of the justice's court action, Gjurich had regularly appealed from such judgment to this court, and such appeal is still pending and undetermined. It may be conceded here, as held by the district court of appeal, that the effect of this appeal was to stay "all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein." (Code Civ. Proc., sec. 946) The point of respondents in this connection, one apparently held good by the learned trial judge of the superior court in giving judgment in the subsequent justice's court action, is that as *Page 284 there was no bond given by Gjurich on his appeal to stay the enforcement of the judgment for costs, no stay was effected by the appeal. (Code Civ. Proc., sec. 942) We do not deem it important to consider this question here, and assume that the effect of the appeal was as stated in the above quotation from section 946 of the Code of Civil Procedure. There are other facts that are perhaps material on the question of said Fieg's present right to damages by reason of the attachment, but they present no legal question material here differing from the question presented relative to the costs, and as the judgment complained of here awarded her nothing on account of such damages, it is unnecessary to set forth such facts.