Holbrook, Merrill & Stetson v. Superior Court of Sacramento County

Haynes, C. This is a proceeding to review the action of the superior court of the county of Sacramento, Hon. A. P. Gatlin, judge, in a cause wherein the petitioner was plaintiff and Samuel Caldwell was defendant.

The petitioner commenced an action in the justice’s court, in the county of Sacramento, against said Caldwell, a resident of Woodland township, in Yolo county, alleging in the complaint that the defendant promised to pay the moneys sued for to the plaintiff at the city of Sacramento, and service was made upon the defendant in Yolo county.

The defendant appeared specially in the justice’s court and served and filed notice of a motion to dismiss the action based upon the complaint in the action, the return of service upon the defendant, and an affidavit of the defendant showing that he was a resident of Woodland township, Yolo county, and stating facts tending to show that the liability upon which the suit was brought was a contract made and to be performed in said Yolo county.

This motion was noticed for March 28th, which was one day after the time for answering expired, and, to avoid a default, defendant obtained an extension of time to answer until March 30th. In the mean time defendant [591]filed a demurrer to the complaint for want of facts, and also, specially, that the court had no jurisdiction, and afterwards, not waiving his motion or demurrer, answered to the merits, and in a separate defense stated facts showing the court had no jurisdiction. His motion to dismiss was denied, a trial was had, the plaintiff had judgment, and defendant appealed to the superior court upon questions both of law and fact.

In the superior court the case was regularly set for trial, and defendant gave notice of a motion to dismiss the action upon the same grounds urged before the justice of the peace. This motion was continued until the day set for the trial.

The plaintiff opposed the motion, insisting that if defendant ever had any ground for dismissal he had waived it by filing a demurrer and answer to the merits, by going to trial upon the merits, and taking an appeal on questions of both law and fact without a statement of the points upon which he relied, and that the court had no jurisdiction to do any thing but try the case de novo. The court overruled the objection, and plaintiff excepted.

The return made by respondent then states as follows: “ Whereupon evidence was introduced by the respective parties upon the question of defendant’s residence, and the place where plaintiff’s alleged cause of action arose and was to be performed, and the plea to the jurisdiction submitted to the court for decision.”