Reagan v. Justice's Court of City
Before: Searls
Synopsis
Pleading—Statute of Limitations—Waived.—The right to interpose the plea of the statute of limitations is waived unless taken advantage of by demurrer or answer.
Id.—Presumption that Agreement was in Wetting. — An agreement which is required by statute to be in writing, if in other respects properly pleaded, will be presumed, for the purpose of testing the sufficiency of the pleading, to have been in writing. The exception to the rule arises only in cases where the agreement must necessarily be in writing to confer jurisdiction on the court.
Id.—Justice’s Court—Judgment by Default—Certiorari.—A judgment by default rendered by a justice’s court, even if erroneous, will not be reviewed on certiorari, when the court had jurisdiction of the subject-matter and of the person of the defendant.
Searls, C. J. —This is an appeal from a judgment of the superior court of the city and county of San Francisco, dismissing a writ of review to the justice’s court of said city and county.
[254]An action was commenced in th¿ justice’s court. The following is a copy of the complaint:—•
“In the-Justice’s Court of the City and County of San Francisco, State of California. Bridget Fitzgerald, Executrix of the Last Will of Patrick Fitzgerald, Deceased, Plaintiff, v. Daniel Reagan and Ann Reagan, Defendants.
“The above-named plaintiff complains'Of the above-named defendants, and alleges:—
“That the said Patrick Fitzgerald died in said city and county on or about the twenty-eighth day of July, 3884, leaving a will, which, after due proceedings had, was admitted to probate as his last will and testament on the thirteenth day of August, 1884, in and by the order and decree of the superior court of said city and county, duly made and given herein.
“And on or about the same day letters testamentary upon his estate issued to said plaintiff, Bridget Fitzgerald, out of said court, and she then and there qualified as executrix of said will, and she ever since has been and now is such executrix.
“That at the time of the death of said Patrick Fitzgerald, the said defendants were indebted to him' in the sum of $381, gold coin of the United States, for money loaned by said deceased to the defendants in his lifetime, and legal interest on the same.
“That in about three months after the said death, the defendants promised to pay said sum of $381 to said executrix, but they have not paid the same or any part thereof, except the sum of $101, leaving a balance of $280 still due and unpaid, which sum is now payable to said plaintiff as executrix.
“Wherefore the plaintiff prays for judgment against the defendants for the sum of $280, with interest and costs. M. Cooney, Attorney for Plaintiff.”
Indorsed: “Filed February 4, 1885.
“Frank Murphy, Clerk.
“By M. T. Dwyer, Deputy Clerk.”
[255]
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