Montgomery v. Superior Court

Belcher, C. C. — This is an application for a writ of certiorari to review a judgment of the Superior Court of the county of Yolo.

It is claimed for the petitioner that no action was commenced in the Justices’ Court, because no sufficient complaint was filed, and that no judgment was entered by the justice, and therefore no appeal could be taken therefrom to the Superior Court.

It appears from the record that one Chantry, in order to commence an action against Montgomery, filed with a justice of the peace, as his complaint, what purported to be a copy of an account for "one hundred dollars, for money borrowed the thirty-first day of January, 1884.”

Upon this complaint a summons was issued and served upon Montgomery, and in due time he appeared and answered, without demurrer or other objection that the complaint was insufficient. The case was afterwards tried before a jury, both parties being present with their witnesses and attorneys, and a verdict was returned in favor of the defendant.

Within thirty days after the verdict was returned the plaintiff served and filed a notice of appeal to the Superior Court upon questions both of law and fact, and at [409]the same time filed an undertaking sufficient to make his appeal effectual.

In due time thereafter the justice transmitted to the clerk of the Superior Court the notice of appeal, undertaking, and other papers filed in the case, and also a paper entitled “ Transcript from Docket.” In this transcript jvas entered the title of the action and all the proceedings, as required by statute, down to and including the verdict of the jury.

After the verdict appeared the following entries, which were subscribed by the justice: “ Jury fees paid by defendant and judgment entered for the defendant for costs of suit, defendant’s costs being $25 for witnesses’ and jury fees, also the sum of $1.75 for constable fees; total, $26.75. Plaintiff’s costs being $17.

“ I hereby certify the foregoing to be a true and correct transcript from my docket of the proceedings made in the above-entitled case.”

Nearly a year after the papers were filed in the Superior Court, without any objection on the part of the defendant, the case was brought to trial before a jury. Both parties appeared with their witnesses and attorneys, and at the end of trial a verdict was rendered in favor of the plaintiff, upon which judgment was entered.