Purcell v. Richardson

LORIGAN, J.

Appellant filed a petition in the superior court of Siskiyou County for a writ of mandate to compel the defendant as justice of the peace of Lake Township in said county to issue an execution from his court on a judgment entered therein in favor of appellant and against one

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A. A. Atkinson. An alternative writ was issued which respondent answered, and on the hearing an order was made by the superior court denying the petition. From this order an appeal was taken to the district court of appeal for the third district which affirmed the judgment of the superior court.

The matter is here on an order of this court granting a further hearing.

It appears from the record that on July 13, 1910, Atkinson brought suit in said justice’s court against the petitioner Purcell to recover the sum of nine dollars, the value of services alleged to have been rendered the latter by Atkinson as a physician. On July 18, 1910, Purcell filed a pleading in that action which he denominated an “answer, demurrer and counterclaim” wherein he demurred to the complaint, denied the alleged indebtedness, and “by way of counterclaim” alleged negligence on the part of Atkinson in prescribing treatment for him as his physician and claimed that he had suffered damage thereby in the sum of $272. On July 28, 1910, Purcell applied to said justice for the entry of a judgment in his favor under that portion of his pleading filed as a “counterclaim” upon the theory that while so denominated it was in legal effect a “cross-complaint” which the plaintiff Atkinson having failed to answer entitled him to a judgment by default against said Atkinson on the cross-complaint. The justice accorded with this claim on the part of Purcell and entered a judgment by default against Atkinson for the full amount of damages claimed—-$272 and costs. Subsequently, on August 8, 1910, the justice, on motion of Atkinson and after notice to Purcell, set the aforesaid judgment aside and fixed September 15, 1910, as the date for the trial of the cause. On September 3, 1910, Purcell filed a written demand upon the said justice for the issuance of an execution on the said judgment so entered against Atkinson. The justice refused to issue it, and this proceeding in mandate was thereupon commenced by Purcell to compel its issuance.