Simon v. Justice's Court

McFARLAND, J.

This is an appeal from a judgment of the superior court in a proceeding in

certiorari

in which the petitioners therein, Simon and Busch, sought to have certain orders of a justice’s court annulled.

The petitioners commenced an action in a justice’s court of the city of Stockton, of which C. P. Bendon was the justice, against one Sparks, who was served with summons in San Francisco, and had until the thirty-first day of August, 1897, to appear. On the first day of September, 1897, it appearing that no answer had been filed by Sparks and no appearance made by him in any way, default was entered against him by A. C. Parker, a justice of the peace who was then holding court for said Justice Bendon, in the absence of the latter; and, as the suit was for damages for an unlawful act, witnesses were examined and evidence received on the part of plaintiff, and judgment was rendered on said September 1st against Sparks for eighty-five dollars and some costs. Nothing further appears to have occurred in the case until the thirteenth day of October, 1897, which was more than forty days after the rendition of the judgment. On that day the attorney for Sparks filed an affidavit in the justice’s court, in which he stated that on August 28th he prepared an answer for Sparks and put it into the United States mail on that day addressed to the said Justice Bendon at Stockton, with a letter saying that he was about to take a trip east and would not be back until October, and asking that the cause be set for about the 10th or 11th of that month; that he also on said day addressed to the attorney for the plaintiffs in said suit, at his residence in Stockton, a letter inclosing a copy of the answer, in which he also stated his anticipated absence and asked that the case be not set until about the 11th of October; that he heard no more of the matter until the 4th of October, 1897, when he received a letter from the attorney for the plaintiffs notifying him of the judgment which had been rendered on September 1st and asking him to have the amount thereof forwarded to him; and that Justice Bendon had left the state on the 24th of August, 1897,

[47]

and did not return until the 5th of September, and that in the meantime Parker had held court for him, and that one Carroll, who was constable, had indorsed on the envelope containing the answer that it had been received at the office of the said justice on the thirty-first day of August, 1897. Some other facts not necessary to be noticed were stated in the affidavit, and it concluded with the prayer that the court would “stay the said judgment and declare the same void and of no effect, and will refuse to issue process thereon, and recall all process and other proceedings taken upon said void judgment.” This affidavit was filed October 13, 1897, and on the same day notice was given of a motion for orders staying the judgment, declaring it void, staying further execution, etc. These motions were heard on the sixteenth day of October, 1897, on which day the court granted the motion to stay judgment herein, declaring the judgment void, and ordering that the answer of Sparks