City of Los Angeles v. Young

HENSNAW, J. This is an. appeal from the judgment of tte superior court upon a writ of review vacating and annulling a judgment rendered in a justice’s court.

One McCombs in the justice’s court of the township of Los Angeles had instituted a suit against the city of Los Angeles and C. Compton. The defendants appeared in said action by their attorney W. E. Dunn, and interposed demurrers to the complaint. Thereafter the justice of the peace heard and passed upon the demurrers, overruled them, and granted defendants two daj's’ time in which to answer. Defendants failed to answer, and judgment by default was entered for plaintiff. The statutory period of thirty days during which an appeal could have been taken to the superior court passed, and afterward the defendants in that action obtained from the superior court of the county a writ of review. After hearing upon this writ the superior court annulled the judgment of the justice’s court, and this appeal followed.

The contention of petitioners in the superior court was that neither they nor their attorney had been served with notice of the time set for the trial; that service of such notice upon them is, under section 850 of the Code of Civil Procedure, an imperative prerequisite to the jurisdiction of the justice of the peace to try the cause; and that under the writ they were entitled to show and did show to the satisfaction of the superior court, by legal and competent evidence, that no notice had in fact been served.

Respondents’ contention that the service of notice of the time set for trial is a jurisdictional prerequisite is supported by the case of Jones v. Justice's Court, 97 Cal. 523. As appears by that case, the entry in the justice’s docket was to the effect merely that at the time set for trial no one appeared for defendant, and that counsel for the adverse party "stated that notice of trial had been served on counsel for defendant, and that he would produce the same.” This was manifestly no proof of service of the notice, and it was so held by this court. There was also an affidavit of the service of the notice filed in that case, but this affidavit was not embodied in the return of’ the justice to the superior court, and this court further held in that regard that the superior court was not required to accept the above [297]memorandum in tbe justice’s docket as any evidence that the affidavit contained proof that the notice had been given, it being further said: “The return did not, moreover, purport to show that the justice had given any notice, nor did it contain or refer to the service of any notice given by him, and as all notices are required to be in writing (Code Civ. Proe., sec. 1010), such notice, if it had existed, would have formed a part of the return by the justice.”