Elder v. Justice's Court

VAN DYKE, J.

Respondent herein applied to the court below for a writ of

certiorari

for the purpose of annulling a judgment of the justice’s court in the ease of Harvey Moore

v.

H. E. Adams and John Elder. Judgment was rendered in his favor and the defendants have appealed. The ground of the application is, that the petitioner had no notice or knowledge of the time fixed for the trial of the cause in said justice’s court, that he had no knowledge of the recovery of the judgment therein for more than thirty days thereafter, and that he had no appeal, or any plain, speedy, or adequate remedy in the ordinary course, of law in the premises. The return to the writ on behalf of the appellant shows that the cause of Moore

v.

Adams et al. was commenced August 27, 1894; that on October 25th of the same year said Elder answered in said action by general denial and a plea of discharge in insolvency; that for some reason unexplained the cause was allowed to slumber for over four years, until April 22, 1899. The following from the return shows the only notice given, or attempted to have been given, setting the cause for trial: He (the justice) upon the application of the plaintiff, “thereupon called up said Edwards on the telephone and informed him that attorney for plaintiff in said action desired the case set for trial at 10 o’clock a. m., May 3, 1899, if it would suit him, said Edwards; that said Edwards replied in substance that he did not remember the case, and that said justice told him the title of the case, and that it was an old case of Justice Austin’s docket, in which said Edwards appeared as attorney for John Elder, a defendant therein; that said Edwards replied that he remembered appearing for a man of that

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name, but had not seen him for a long time; did not know where he then was, but that it would be all right to go ahead.” A transcript of the docket accompanying the return shows that at the trial said defendant failed to appear, either in person or by counsel.

It is provided by section 850 of the Code of Civil Procedure: “When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendants who have appeared, thereof.” In