Peralta v. Adams — 2 Cal. 594

Majority

p. 594

VINCENTE PERALTA, Respondent, v. ESOM ADAMS, Appellant.

Headnote

A mandamus is not the proper remedy where an inferior Court refuses to enter a judgment for costs. The party complaining may appeal, or bring his action for the costs.

Appeal from the Third Judicial District for the County of Contra Costa.

This appeal is from an order of the District Court granting a peremptory writ of mandamus, commanding the appellant, who is a Justice of the Peace of said county, to enter a judgment in the case of Vincente Peralta v. E. Adams, the respondent, in favour of respondent for $349, costs of suit, and to issue execution therefor.

The proceeding before the Justice was in forcible entry and detainer; and on the 20th November last, the case was dismissed on plaintiff’s motion without prejudice: on the same day plaan™ nled his affidavit and claim of costs to the above amount, and demanded judgment and execution thereon; which respondent swears the Justice refused. This affidavit was filed Jan. 3d, 1852. On the same day, the County Court dismissed the application and refused the writ. Respondent appealed to the District Court 28th February, 1852 ; who, on the 3rd March, granted the peremptory mandamus; and on the 8th March, this appeal was taken.

Randolph, for appellant.

Mandamus will lie to “ compel the performance of an act which the law specially enjoins.” Cal. Stat. p. 124, sec. 467. “ When the prevailing party in this action is entitled to costs, the Justice shall add this amount to the. verdict, and in case of a dismissal, shallenter up judgment in favour of the defendant for the amount of such costs.” Id. sec. 598; Act of April 29th, 1851, “to regulate proceedings in civil cases.” Sect. 571.

Oarpentier, for respondent.

In forcible entry, the justice is required to tax the costs if the party complained of is found not guilty. See 10th sect, of

p. 595

the Act of 1851. But he is not required to tax the costs where the action is dismissed, as in this case.

delivered the opinion of the Court; Murray, Chief Justice, concurring.

A mandamus is not the proper remedy where an inferior Court refuses to enter a judgment for costs. The party complaining has the right to appeal from such a defective judgment, or he may resort to his action for the costs.

The judgment of the District Court is reversed with costs.