Maxson v. Superior Court

CHIPMAN, C. An action was commenced in the justice’s court by one Roberts against Maxson & Harris, petitioners in this proceeding. Defendants in that action appeared by general demurrer. A day was fixed for hearing the issue of law raised by the demurrer, and defendants duly notified. They failed to appear, and after waiting one hour the demurrer was overruled. Plaintiff thereupon demanded judgment for the sum specified in the summons, and the court entered judgment as prayed for in the complaint, after first entering the default of defendants. In due time defendants gave notice of and perfected their appeal from the judgment “on questions of law alone.” Defendants filed a statement of the case setting forth the facts as above, and stating the [125]grounds for the appeal, namely, that the complaint does not state facts sufficient to constitute a cause of action; that defendants had no notice of the overruling of the demurrer, nor of the trial of the ease, other than the notice of the trial of the issue of law raised by said demurrer; that the justice had no jurisdiction to enter a judgment, and it is void. When the appeal came up for hearing, the superior court ordered “that the judgment of the lower court be, and the same is hereby, reversed, with directions to the said lower court to sustain the demurrer of the defendants to the complaint of plaintiff, with leave to the said plaintiff to amend his complaint, if so advised.” To which ruling ordering any further proceedings in the lower court after the judgment was reversed defendants excepted.

The justice had jurisdiction to enter judgment upon failure of defendants to answer. They were not entitled to previous notice of the overruling of the demurrer: Code Civ. Proc., see. 872; Stewart v. Justice’s Court, 109 Cal. 616, 42 Pac. 158. The question as to the sufficiency of the complaint was presented by the statement of the case, and could have been heard without a statement: Rossi v. Superior Court, 114 Cal. 374, 46 Pac. 177. The court had jurisdiction to hear and determine it: Code Civ. Proc., sec. 980. But whether the complaint did or did not state a cause of action cannot be revieAved in this proceeding: Sherer v. Superior Court, 94 Cal. 354, 29 Pac. 716; 96 Cal. 653, 31 Pac. 565. The superior court, hoAvever, did not sustain the demurrer, but manifestly grounded its order remanding the case to the justice upon the insufficiency of the complaint.

Petitioners contend (1) that there is no distinction between appeals on questions of law alone and appeals on questions of law and fact, and that the court ought to have ordered a new trial in the superior court; and (2) that the court had no jurisdiction to correct the rulings of the justice, and remand the case with instructions how to proceed. Respondent contends (1) that the appellate court has jurisdiction to try only such issues as were raised in the loAver court, and that as no issue of fact ~wa& there raised the superior court could not try the case anew; and (2) that, having no authority to try the case, the superior court made the only order it could make, Avhen it reversed the judgment, and remanded the case to the court of original jurisdiction.