Peacock v. Superior Court in and for Solano

An action in a justice’s court was brought and prosecuted by W. S. Peacock, petitioner herein, against Henry Goosen, defendant. Trial was had, oral and documentary evidence was introduced on behalf of the plaintiff, and when plaintiff rested his case the defense moved for a nonsuit upon the ground of his failure to prove the material allegations of his complaint. The justice granted the motion and dismissed the action. Peacock prosecuted in due form his appeal to the superior court from, the judgment so rendered, his notice of appeal declaring that the appeal was taken on questions of both law and fact. In the superior court a motion to dismiss this appeal was made and granted. The grounds of the motion were that the appeal from a judgment of dismissal presents a question of law alone, and that when a question of law alone is'presented by an appeal from a justice’s to the superior court a statement is required, and that no such statement accompanied the appeal in this case. (Code Civ. Proc., sec. 976.) Thereupon petitioner applied to this court for mandate seeking a vacation of the order of dismissal given by the superior court and a restoration of his appeal from the justice’s court to the calendar of the superior court for trial.

Petitioner is within his rights in thus seeking mandate. (Golden Gate Tile Co. v. Superior Court, 159 Cal. 474 , [ 114 Pac. 978 ]; Edwards v. Superior Court, 159 Cal. 712 , [ 115 Pac. 649 ].)

To this petition respondent answers that petitioner’s declaration in his notice of appeal that it is taken both upon questions of law and fact is not conclusive. This is true, for the mere declaration in a petition cannot have the effect of varying the facts. Thus, if an appeal be taken to the superior court after judgment upon demurrer sustained, it would still be an appeal upon questions of law alone, even though the notice of appeal contained the declaration that it was taken on questions both of law and fact. Next, respondent eon-

The reasoning of respondent would have force if the justice were clothed with power and authority to render the judgment which he gave. The fundamental error in respondent’s reasoning arises from the fact that the justice is not clothed with any such power. By the code itself (Code Civ. Proc., sec. 925) justices’ courts are declared to be courts of peculiar and limited jurisdiction, and only 'those provisions of the codes which are in their nature applicable to the organization, powers and course of proceediúgs in justices’ courts, or which have been made applicable by special provisions, are so applicable. Turning briefly to the consideration of the powers of courts of record and of general jurisdiction, it is declared as to them (Code Civ. Proc., sec. 581) that “An action may be dismissed, or a judgment of nonsuit entered, in the following cases:

“5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury.”

The, corresponding section governing the procedure in justices’ courts is found in section 890 of the same code. That section authorizes a judgment of dismissal to be entered only in certain cases, denies by its silence the right of a justice to entertain a motion for a nonsuit, and omits entirely the provisions of subdivision 5 quoted above from section 581. The imperative conclusion to be drawn from a consideration of these two sections is that the legislature as to justices’ courts, has limited the causes for which a judgment of dismissal may be entered by a justice, and that a failure by the plaintiff to establish his case by satisfactory evidence is not one of those causes. Further; that the legislature has not intrusted to

It follows from the foregoing that the justice erroneously entered a judgment of dismissal against plaintiff, when the sole judgment which he was authorized to render under the circumstances was a judgment for defendant upon the merits. But the erroneous form of the judgment which the justice actually rendered cannot deprive the plaintiff of his right to appeal upon questions both of law and fact (for under the circumstances and after a trial upon the merits questions of both law and fact are involved), and so to have his cause tried de novo in the superior court. Smith v. Superior Court, 2 Cal. App. 529 , [ 84 Pac. 54 ], upon which respondent relies, was not brought under review before this court by any petition for rehearing. The basic error in the Smith case is the same as has been here pointed out. It rests upon the unfounded assumption of the power of the justice to entertain a motion for a nonsuit, and to render a judgment of dismissal under the provisions of section 581 of the Code of Civil Procedure. But, as has been pointed out, the power of the justice’s court in the matter of dismissal is circumscribed by and confined to the provisions of section 890 of the Code of Civil Procedure.

Let mandate issue as prayed for.

And petitioner will recover his costs upon this application, to be taxed, in accordance with the law.

Sloss, J., Angellotti, J., Shaw, J., and Melvin, J., concurred.