Peacock v. Superior Court in and for Solano
Before: Henshaw
Synopsis
Justice’s Court—Erroneous Dismissal of Appeal by Superior Court —Mandamus Lies to Bestore Appeal.—Where an appeal from a justice’s court to the superior court was properly perfected, and the latter court erroneously dismissed the appeal on the ground that it had not been properly taken, a writ of mandate will lie to compel the superior court to restore the appeal to its calendar for trial.
Id.—Declaration in Notice of Appeal not Conclusive.—A declaration in a notice of appeal from a justice’s court that it is taken both upon questions of law and fact is not conclusive. Such a declaration could not have the effect of varying the facts.
Id.—Procedure in Justices’ Courts—Provisions of Code Applicable. Under section 925 of the Code of Civil Procedure, justices’ courts are declared to be courts of peculiar and limited jurisdiction, and only those provisions of the codes which are in their nature applicable to the organization, powers, and course of proceedings in such courts, or which have been made applicable by special provisions, are so applicable.
Id.—Justice’s Court cannot Grant Nonsuit—Power of Dismissal.— Under section 890 of the Code of Civil Procedure, a justice’s court has no power to pass upon and grant a motion for nonsuit, and that section has limited the causes for which a judgment of dismissal may be entered. The failure of the plaintiff to establish his case by satisfactory evidence is not one of those causes.
Id.—Insufficient Evidence for Plaintiff—Judgment must be for Defendant on the Merits.—Where evidence has been introduced in a trial of a case before the justice and the plaintiff rests his ease upon evidence which, to the mind of the justice, is not sufficient to entitle him to judgment, there has been a trial upon the merits, the plaintiff has failed to establish his cause, and judgment upon the merits should be rendered for the defendant.
Id.—Erroneous Entry of Judgment of Dismissal—Plaintiff may Appeal on Questions of Both Law and Fact.—Under such circumstances, the erroneous entry of a judgment of dismissal against the plaintiff does not deprive him of his right to appeal upon questions of both law and fact, and so to have his cause tried de novo in the superior court.
HENSHAW, J.
An action in a justice’s court was brought and prosecuted by W. S. Peacock, petitioner herein, against Henry Goosen, defendant. Trial was had, oral and documentary evidence was introduced on behalf of the plaintiff, and when plaintiff rested his case the defense moved for a nonsuit upon the ground of his failure to prove the material allegations of his complaint. The justice granted the motion and dismissed the action. Peacock prosecuted in due form his appeal to the superior court from, the judgment so rendered, his notice of appeal declaring that the appeal was taken on questions of both law and fact. In the superior court a motion to dismiss this appeal was made and granted. The grounds of the motion were that the appeal from a judgment of dismissal presents a question of law alone, and that when a question of law alone is'presented by an appeal from a justice’s to the superior court a statement is required, and that no such statement accompanied the appeal in this case. (Code Civ. Proc., sec. 976.) Thereupon petitioner applied to this court for mandate seeking a vacation of the order of dismissal given by the superior court and a restoration of his appeal from the justice’s court to the calendar of the superior court for trial.
Petitioner is within his rights in thus seeking mandate.
(Golden Gate Tile Co.
v.
Superior Court,
159 Cal. 474, [114 Pac. 978];
Edwards
v.
Superior Court,
159 Cal. 712, [115 Pac. 649].)
To this petition respondent answers that petitioner’s declaration in his notice of appeal that it is taken both upon questions of law and fact is not conclusive. This is true, for the mere declaration in a petition cannot have the effect of varying the facts. Thus, if an appeal be taken to the superior court after judgment upon demurrer sustained, it would still be an appeal upon questions of law alone, even though the notice of appeal contained the declaration that it was taken on questions both of law and fact. Next, respondent eon-
[703]
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)