History Co. v. Light
Before: Haven
Synopsis
Justice’s Court — Motion to Set Aside Service of Summons — Action in Wrong County — Affidavits.—A justice of the peace has jurisdiction to entertain a motion of a defendant to set aside the service of a summons attempted to be made upon him in a county other than that in which the action was pending, in violation of the provisions of section 848 of the Code of Civil Procedure, and the motion is properly made upon affidavits showing the grounds of the motion.
In.—Allegation of Complaint — Place of Performance of Contract — Inquiry as to Fact. — The fact that an unverified complaint filed in an action in a justice’s court alleges that the contract sued upon was to be performed by the defendant therein in the county in which such action was brought does not foreclose all inquiry as to the fact, or deprive the justice of jurisdiction to pass upon the truth of the allegation upon a motion to set aside the service of summons.
Id. — Jurisdiction to Decide Motion — Certiorari. — Where a court has jurisdiction to hear and decide a motion before it, its decision thereon cannot be reversed or annulled upon certiorari, no matter whether the decision was right or wrong, upon the evidence before the court.
Id. — Burden oe Prooe upon Dependant. —-The burden of proving an improper service of summons in an action in a justice’s court, upon amotion to set aside the service upon affidavits showing the ground of the motion, is on the defendant, and he is required to present a clear case. ,
De Haven, J. The petitioner commenced this proceeding in the superior court for the purpose of annulling an order made by a justice of the peace in San Joaquin County, setting aside the service of a summons made in a certain action pending in the court of said justice of the peace, wherein the petitioner was plaintiff, and one Quackenbush defendant. Upon the return made to the writ of certiorari, the superior court dismissed the proceeding, and the petitioner appeals.
The justice of the peace had jurisdiction to entertain the motion of the defendant therein to set aside the service of the summons made upon him in a county other than that in which the action was pending. Section 848 of the Code of Civil Procedure, so far as applicable to this case, is as follows: —
“ Sec.' 848. The summons cannot be served out of the county of the justice before whom the action is brought, except .... when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case summons may be served in the county where he resides.”
It is clear that a defendant has the right to move the court to set aside the service of a summons attempted to be made in violation of the provisions of this section, and the motion is properly made, as it was in this case, upon affidavits showing the grounds of the motion. The [58]fact that the unverified complaint filed in the action alleged that the contract sued upon was to be performed by the defendant therein in the county in which such action was brought did not foreclose all inquiry as to the fact, and deprive the justice of the peace of jurisdiction to pass upon the truth of that allegation upon the motion to set aside the service of the summons. The burden of proving the improper service is, of course, upon the defendant in such a motion, and he should be required to present a clear case. But the justice having jurisdiction to hear and decide the motion, his decision thereon cannot be reversed or annulled upon certiorari, no matter whether such decision was right or wrong, upon the evidence before him. (Buckley v. Superior Court, 96 Cal. 119; Sherer v. Superior Court, 96 Cal. 653.) The action of the superior court in dismissing the proceeding was correct, and must be affirmed.
Judgment affirmed.
Garoutte, J., and McFarland, J., concurred.
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