American Type Founders Co. v. Justice's Court

TEMPLE, J.

This appeal is from a judgment rendered upon

certiorari

hy the superior court of Marin County, affirming the judgment of a justice of the peace.

A case was tried by the justice, and at the conclusion of the trial was taken under advisement, and the parties were allowed to file briefs. Some months afterwards, the justice rendered judgment in favor of the plaintiff in that action. The defendant subsequently commenced this proceeding.

His contention is, that a justice of the peace has no authority to take a case under advisement, and that a failure to decide a case

at the conclusion

of the trial works a discontinuance of the cause. This contention is based upon section 892 of the Code of Civil Procedure, which reads: “When the trial is by the court, judgment must be rendered at the close of the trial.”

The point was made and expressly decided in

Heinlen

v.

Phillips,

88 Cal. 557. Counsel for the appellants contends that all that was said upon the subject in that case was

obiter,

because it was also urged and decided in that case that the justice of the peace had no power to set aside the judgment, it not being a judgment by default. It was held in

[320]

Winter

v.

Fitzpatrick,

35 Cal. 269, that a justice could not vacate a judgment entered by him. This question was reconsidered in

Weimmer