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McGorray v. Superior Court

141 Cal. 266 Court Cal. Decision date 1903-12-08 Docket S. F. No. 3785 English

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p. 266
[S. F. No. 3785.
In Bank.—
December 8, 1903.]
B. McGORRAY, Petitioner, v. SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent.

Headnote

Justice’s Court—Jurisdiction—Waiver or Objection.—Under the terms of subdivision 4 of section 890 of the Code of Civil Procedure, the objection that the action has not been commenced in the proper township is waived, if not taken at the trial.
p. 267
Id.—Writ Off Review—Insufficient Petition.—A petition for a writ of review to annul a judgment of the superior court rendered, on appeal from the judgment of a justice’s court, on the ground that it does not appear from the complaint in the justice’s court that the action was commenced in the proper township, which does not allege that an objection to the jurisdiction of the justice of the peace was taken at the trial, or at all, is insufficient.
PETITION for Writ of Review to annul the judgment of the Superior Court of San Joaquin County rendered upon appeal from a Justice’s Court. F. H. Smith, Judge.
The facts are stated in the opinion of the court. •
A. H. Carpenter, and Joshua B. Webster, for Petitioner.
Arthur L. Levinsky, for Respondent.

The petition for a writ of review shows that the defendant was sued in a justice’s court upon a contract for the payment of money, that he was served with summons and answered the complaint, that judgment was entered against him, that he appealed to the superior court on questions of law and fact, where, after a retrial, judgment was again entered against him. He contends that this judgment is void, because it does not appear from the complaint in the justice’s court, the docket, etc., that the action was commenced in the proper township, and consequently that the justice of the peace had no jurisdiction originally, and the superior court no jurisdiction on the appeal except to dismiss the action. It is not alleged that any objection to the jurisdiction of the justice of the peace was taken at the trial or at all, and it is expressly provided by subdivision 4 of section 890 of the Code of Civil Procedure that the objection that an action has not been commenced in the proper township is waived, if not taken at the trial. This section must be considered in connection with section 832 of the Code of Civil Procedure, and it provides for a mode of waiving objection to the jurisdiction fully as effective as a voluntary appearance without summons.

Writ denied.-

Statutes and regulations cited