Opinion
Rehearing Denied April 14, 1930
Hearing Granted by Supreme Court May 27, 1930
Application for writ of prohibition by J.P. Morgan, directed to the Superior Court in and for Kings County and another.
Writ granted.
COUNSEL
A.C. McClellan, of Corcoran, for petitioner.
Clarence H. Wilson, of Los Angeles, for respondents.
OPINION
BARNARD, Acting P.J.
This is a petition for a writ of prohibition. The petition and the answer show the following facts: On September 17, 1929, an action was commenced in the justice’s court of Corcoran township, in the county of Kings, to collect $95.25 from the defendant, the petitioner herein. A writ of attachment was issued and levied by the constable upon a crop of growing cotton belonging to said defendant. The action was tried on November 12, 1929, and at that time the justice of the peace orally stated that he would give judgment for the plaintiff, who was then present in court with his attorney. It does not appear when the judgment was actually entered.
Prior to the trial of the action, the plaintiff, acting for the constable, harvested the crop of cotton, which amounted to eight bales. On October 25, 1929, the justice’s court made an order releasing from the attachment four bales of said cotton, which were turned over to the defendant without his paying any part of the cost of picking, ginning, hauling, and baling the same. On November 20, 1929, plaintiff’s attorney wrote a letter to the justice of the peace, stating that his costs were $6.75. On November 21, an execution was issued, and on November 22 the defendant in said action deposited in said court the sum of $105.54, covering the amount of the judgment and costs. On November 27, 1929, the plaintiff filed a motion to modify said judgment and quash the execution issued, in order to have said judgment include as costs the sum of $273.54, in lieu of the $6.75, it being claimed that this additional amount was spent by him, under the direction of the constable, in harvesting, ginning, and baling said crop of cotton. Said motion was heard in the justice’s court, and was denied on December 26, 1929. On the same day, plaintiff served and filed notice of appeal, with the requisite bond. Thereafter, in the superior court of Kings county, petitioner herein, being the defendant in said action, moved to dismiss said appeal on the ground that the same had not been taken within thirty days after notice of rendition of said judgment. Said motion was denied, and the plaintiff in said action then filed a notice of motion to set said cause for trial de novo. Petitioner is now seeking a writ of prohibition to prevent said superior court from proceeding with the trial of said action.
Section 974 of the Code of Civil Procedure, as it now reads, provides that any party dissatisfied with the judgment rendered in a civil action in a justice’s court may appeal therefrom at any time within thirty days after notice of the rendition of the judgment. Section 893 of the same Code provides that such judgment shall have no effect for any purpose until it is entered by the justice of the peace, and notice of the rendition of the judgment must be given to the parties in writing, signed by the justice. It is the general rule that, where a written notice is thus required by statute, it must be given, unless it has been waived by the party entitled to claim the benefits of this provision. Peterson v. Superior Court, 30 Cal.App. 466, 158 P. 547, 548; Mallory v. See, 129 Cal. 356, 61 P. 1123. In the case of Peterson v. Superior Court, just cited, it was held that, under section 859 of the Code of Civil Procedure, the time within which application must be made for the relief provided for in said section begins to run from the time of service of the written notice. This same ruling is followed in the case of Arbogast v. Superior Court, 32 Cal.App. 372, 162 P. 909. Section 974 of the Code of Civil Procedure was amended in 1921 by changing the time within which an appeal might be taken from thirty days after rendition of the judgment to thirty days after notice of the rendition of the judgment. The rule thus earlier established for a similar situation was applied by this amendment to the time within which an appeal may be taken from the judgment in a justice’s court, and this time does not begin to run until notice is given of the rendition of the judgment.
It is conceded by all parties that in the instant case no notice was given, as required by section 893 of the Code of Civil Procedure. Petitioner, however, contends that this notice was waived, since the plaintiff was present in court when the decision was announced; that the attorney for the plaintiff admitted knowledge of said judgment by filing a memorandum of costs, being the letter of November 20, 1929, above referred to; and, therefore that the notice of appeal filed on December 26, 1929, was too late. The oral statement of the court’s decision in the presence of the plaintiff did not waive such notice. A judgment in the justice’s court is not rendered until it is entered in the docket. Thomson v. Superior Court, 161 Cal. 329, 119 P. 98; Wright v. Superior Court, 57 Cal.App. 749, 207 P. 910. The plaintiff was entitled to written notice after the judgment was actually entered by the justice of the peace. Nor was this right waived by the letter of November 20, giving the amount of his costs. In the case of Hughes Mfg. Co. v. Elliott, 167 Cal. 494, 140 P. 17, 18, the court said:
"The rule is that, in order to deprive an appellant of his right to written notice of the entry of an order or judgment, there must be facts of record clearly indicating a waiver of such notice. In Mallory v. See, 129 Cal. 359, 61 P. 1124, after reviewing the cases in which the conduct of appellants had been held to constitute waiver, this court said: ‘The rule would therefore seem to be that written notice of filing of decision is in all cases required, unless waived by facts appearing in the records, files, or minutes of the court; and it follows that actual notice or knowledge, other than written notice, is insufficient in any case unless it appears, from facts thus evidenced, that written notice was waived.’ " In the case of Nay v. Superior Court, 72 Cal.App. 443, 237 P. 566, 567, the court uses this language:
"It has been decided a number of times that, where the statute requires written notice, actual notice is not sufficient, but these cases, and a number of authorities which might be cited, show that, where a party entitled to a written notice files a notice of appeal, or some paper necessitating further proceedings in the action, such proceeding constitutes a waiver on his part of the giving of the notice prescribed by the statute."
As the court said in Peterson v. Superior Court, supra:
"It is perfectly clear that the information obtained by Goldstein and the defendants of the entry of the judgment cannot be held to have amounted to the transmission to them of actual knowledge of the entry of said judgment. The information was the result of a mere hearsay statement, and, while it was doubtless sufficient to put the parties on their guard or to start them on an investigation which would lead to actual knowledge of the fact of the entry of the judgment, it did not, as stated, constitute actual knowledge. Nor did the mere preparation and verification of the affidavits by which the defendants intended to support their motion to vacate the judgment upon such information involve a waiver of notice of the entry of the judgment. The mere preparation and verification of the affidavits did not constitute ‘a written admission’ of knowledge, nor a ‘motion to the court or other proceeding with reference to the decision, which presumed knowledge that the decision had been made.’ The only motion or proceeding from which knowledge by the defendants of the entry of judgment may be presumed was the motion or application to be relieved from the default. And it was only when that application was filed that the waiver occurred, and consequently the time within which the defendants were required to make their motion and ask the action of the court thereon began to run from the date of the filing of said application."
Section 896 of the Code of Civil Procedure provides that the justice must include in the judgment the costs allowed by law to the prevailing party. Section 911 of the same Code provides that the justice must enter in his docket the judgment, which must specify the costs included therein. It cannot be held that in sending the amount of his costs to the justice on November 20, 1929, the plaintiff was doing anything other than furnishing information which might assist the justice in entering the amount of the judgment, and it cannot be assumed therefrom that he had knowledge that the judgment was entered, or that he waived the notice to which he was entitled. It does appear, however, that execution was issued on November 21, 1929. Section 901 of the Code of Civil Procedure provides that an execution may issue "on the application of the party entitled thereto." While the record does not show at whose request the execution was issued, under the statute the justice had the authority to issue the same only on the application of the plaintiff in that action. In the absence of any showing to the contrary, it must be assumed that the justice did his duty, and that the execution was legally issued. Having taken out the execution, the plaintiff knew of the judgment. Not only would this be actual notice, but the taking out of an execution is an act which necessarily presupposes knowledge of the entry of the judgment, as does the filing of a notice of appeal. See Hughes v. De Mund, 195 Cal. 242, 233 P. 94. Under the rules above set forth, the same must be held to be a waiver of the notice prescribed by the statute. The execution having been issued on November 21, 1929, the plaintiff had thirty days from that date within which to appeal. The appeal not having been taken within that time, it follows that the superior court has no jurisdiction to try the case.
We have reached this conclusion with reluctance, as the equities seem to favor the plaintiff in the original action. It was, however, incumbent upon him to comply with the positive rules of law, prescribing the time within which an appeal may be taken.
A peremptory writ of prohibition will issue as prayed for.
We concur: MARKS, J.; STROTHER, Justice pro tem.