Vignolo v. Superior Court

Petitioner applies for a writ of review for the purpose of having' annulled a judgment of the respondent Superior Court rendered on the merits, after trial de novo, in an action brought before said Superior Court on an appeal from the justice’s court taken on questions of law and fact. Petitioner’s main contention is that there was no trial of the facts in the justice’s court, and that therefore the appeal to the Superior Court was in effect one taken upon questions of law alone, whereunder the power of the Superior Court was limited to a reversal of the judgment and a remand of the cause to the justice’s court for trial on the issues of fact tendered by the pleadings.

The action was commenced by one J ames Neary against' petitioner to recover upon an assigned claim for real estate broker’s commissions. The essential allegations of the com

Petitioner demurred to the complaint on general grounds, and the demurrer was overruled. Thereupon he filed an unverified answer denying “generally and specifically, each and every, all and singular, the allegations of said complaint.” The cause then came on for trial before the justice, and petitioner stipulated orally “that the facts are the same as pleaded in the complaint,” following which judgment was given in favor of petitioner, and the plaintiff appealed to the Superior Court on questions of law and fact. Thereafter the cause came on for trial on the merits before the latter court, without objection being made thereto by petitioner, and a second and similar stipulation was made by petitioner as to the facts; whereupon the Superior Court rendered its judgment granting unto plaintiff the relief prayed for in the complaint. The parties then filed a written stipulation waiving findings of fact and conclusions of law, and judgment for plaintiff was entered accordingly. At this stage of the proceedings petitioner’s present counsel were substituted as his attorneys, and they made a motion for a new trial, which was denied. Execution was thereafter issued and levied on certain real property belonging to petitioner. This proceeding was then instituted.

Conceding, as petitioner contends, that when an action is commenced in the justice’s court there must be an adjudication of the facts therein before a trial de novo may be had and a judgment rendered on the merits in the superior court (Myrick v. Superior Court, 68 Cal. 98 [ 8 Pac. 648 ]; Null v. Superior Court, 4 Cal. App. 207 [ 87 Pac. 392 ]), the present case, in our opinion, does not fall within the rule stated because the proceedings had before the justice here doubtless constituted a trial upon and a disposal

Trials in the justices’ courts may be had upon issues of law and upon issues of fact (Code Civ. Proc., secs. 878, 881, 882). An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof, and must be tried by the court (Code Civ. Proc., secs. 879, 881). “An issue of fact arises—1. Upon a material allegation in the complaint controverted by the answer ...” and “must be tried by a jury unless a jury is waived, in which case it might be tried by the court” (Code Civ. Proc., secs. 880, 882). The action here came on for trial before the justice upon the issues of fact joined by the allegations contained in the complaint, and the denials thereof contained in the answer. By reason of such controversion of facts plaintiff was required to substantiate the allegations of his complaint by proof, which is defined by section 1824 of the Code of Civil Procedure to be “the effect of evidence, the establishment of a fact by evidence.” It was therefore wholly immaterial, we think, as to the kind of evidence plaintiff adduced, whether it consisted of the testimony of witnesses or the judicial admissions of the defendant. The latter were evidently made for the purpose of saving time and expense, and to avoid the inconvenience of calling witnesses to establish the facts about which there was no dispute; and that they were intended to relate only to the particular trial in the justice’s court is shown by the fact that a second and similar stipulation as to the facts was made in the trial de novo before the superior court. Such judicial admissions were therefore merely evidential in character (Volker etc. Lumber Co. v. Vance, 36 Utah, 348 [Ann. Cas. 1912A, 124, 24 L. R. A. (N. S.) 321 , 103 Pac. 970 ]), doing away with any further evidence, and when accepted by plaintiff, for whose benefit they were made, carried the same probative force as the testimony of witnesses with reference to the disposal of the issues of fact. (5 Wigmore on Evidence, pp. 604, 605.)

The facts being thus established after trial the justice was called upon to render judgment, and under the

In the present case, therefore, after the justice had proceeded with the trial of the facts pleaded in the complaint, and the same had been proved by the judicial admissions of the defendant, it was imperative that he render a judgment upon the merits, for being without legal authority to dismiss the action by nonsuit he could do nothing else; and the fact that such judgment was grounded upon judicial admissions rather than upon oral testimony or any other

The cases cited by petitioner in support of his contention do not reach the point involved here. They either are essentially different in their facts from the present one or declare legal principles which are foreign to the issue herein. For instance, in Null v. Superior Court, supra, and Myrick v. Superior Court, supra, there was no adjudication of the facts whatever by the justice, a judgment of dismissal being entered in each action after the justice had refused to entertain jurisdiction. It was held that under such circumstances the superior court, in the exercise of its appellate jurisdiction, was without power to try the action de novo. In People v. County Court, 10 Cal. 19 , and Fabretti v. Superior Court, 77 Cal. 305 [ 19 Pac. 481 ], no issues of fact were tendered by the pleadings, the appeals having been taken from default judgments, and it was held that appeals on quesions of law alone would lie. The case of Maxson v. Superior Court, 124 Cal. 468 [ 57 Pac. 379 ], determined merely that the superior court, in the exercise of its appellate power, had jurisdiction upon reversal of a judgment of the justice’s court appealed upon questions of law alone to make its judgment of reversal effectual by remanding the

Furthermore, and aside from the merits of the legal questions presented, we are convinced that petitioner, having voluntarily participated in the trial de novo in the Superior court, without objection being made to the jurisdiction of that court to try the action anew, and having entered into a second stipulation therein as to the facts, is now precluded from attacking the judgment rendered therein on the merits. As held in Stehlin v. Superior Court, 12 Cal. App. 421 [ 107 Pac. 568 ], the superior court acquired jurisdiction of the appeal as taken, both of the parties and of the subject matter; and where, under such circumstances, petitioner voluntarily appeared and submitted the whole controversy to the superior court, and an adverse judgment was rendered against him, he cannot be allowed for the first time upon certiorari to question the power of the court to try and determine the appeal on the merits.

For the reasons hereinabove set forth the proceedings sought to be annulled are affirmed.

Tyler, P. J., and Cashin, J., concurred.