Weimmer v. Sutherland

McFarland, J. This is an appeal from a judgment of the superior court of Fresno County rendered upon a writ of certiorari directed to a justice’s court.

James Sutherland (the respondent herein) brought an action in the justice’s court of A. A. Smith (appellant) against E. Weimmer and wife (also appellants herein).

In said action in the justice’s court the defendants therein (Weimmer and wife) appeared and made a motion to quash the summons. The motion was denied, and they then demurred to the complaint. The demurrer was overruled; and then, on June 22,1886, they filed an answer. On July 9th the case was set for trial for July 19, 1886, at one o’clock p. m. At the last-named time the defendants failed to appear, and the court, after having waited one hour, proceeded with the trial; and after hearing witnesses and taking evidence on the issues made by the pleadings, rendered judgment for the plaintiff therein (Sutherland).

On July 26th, defendants, upon affidavits, moved the court to “ vacate and set aside ” the judgment upon the ground that defendants had no notice of the time of trial. The hearing of the motion was continued to September 10th, when the court found that defendants had not received notice of the day of trial (which notice seems to have been deposited by the justice in the United States mail, directed to defendants), and thereupon entered an order “ that said judgment is hereby set aside and vacated.” It does not appear that plaintiff had notice of this motion, or was present when it was heard.

On the application of the plaintiff, Sutherland, the superior court granted a writ of certiorari to review the action of said justice vacating said judgment. On the [343]seventh day of January, 1887, after a full hearing, both parties being present by counsel, the superior court rendered judgment that the said order of said justice’s court vacating the said judgment in said court was void, and of no effect, etc. From this judgment of the superior court this appeal is taken.

Justices’ courts have no power to review their own judgments, unless by some method expressly provided by law. In Winter v. Fitzpatrick, 35 Cal. 269, it was held that a justice of the peace could not vacate a judgment rendered by him, and that an order attempting to do so, not being appealable, should be annulled on certiorari.