Opinion
Department One
Appeal from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge.
COUNSEL:
Will D. Gould, and Groff & Lefroy, for Appellants.
McKeeby & Appel, for Respondents.
JUDGES: Harrison, J. Garoutte, J., and Van Fleet, J., concurred.
OPINION
HARRISON, Judge
An action against the respondents was commenced in the justice's court of Los Angeles township by certain parties, and the summons issued therein was served upon them. The defendants filed a demurrer to the complaint, and the justice fixed the following day for the hearing upon the demurrer. Notice of this fact was served upon the defendants, but they failed to appear at the time set for the hearing, and the justice, after waiting one hour, overruled the demurrer and made an order that the defendants answer "at once"; and upon their failure to answer, entered their default and rendered judgment against them for the amount claimed, with costs. The defendants thereupon applied to the superior court for a writ of review, directed to the justice's court, and upon a return thereto, showing the above facts, the superior court annulled the judgment of the justice's court. From the judgment thus entered an appeal has been taken to this court.
Section 858 of the Code of Civil Procedure prescribes the proceedings to be had in the justice's court upon a demurrer, and declares:
" 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith"; and section 872 authorizes the justice to render judgment in favor of the plaintiff": 2. If the demurrer to the complaint is overruled, and the defendant fails to answer at once."
The provisions of section 850 requiring the justice to fix a day "for the trial of said cause" after an appearance by the defendant, and to notify the defendant thereof, have reference only to such "trial" as is authorized by the nature of the appearance. If by such appearance only an issue of law is presented, there can be a trial of only such issue of law, and a trial of fact cannot be had unless an issue of fact is presented after the trial and disposition of the issue of law.
In the present case the only issue that was presented by the defendants for trial was an issue of law, and the defendants received due notice of the day upon which the trial of this issue would be had by the justice. Upon the overruling of the demurrer the action of the justice was in strict accordance with the provisions of the statute. By section 858 the defendants could have answered forthwith upon the overruling of their demurrer, but they failed to do so; and by section 872, upon their failure to answer "at once," the justice was authorized to render judgment "in like manner as if the defendant had failed to appear and answer or demur." As there was no issue of fact to be tried, there was no occasion for the justice to fix any day for the trial other than that which he had already fixed.
In Jones v. Justice's Court , 97 Cal. 523, the defendant was not notified that the case had been set for trial, and we held that the notice required by the provisions of section 850 to be given to the parties of the time fixed for trial is jurisdictional, and that, in the absence of such notice, the justice has no jurisdiction to proceed in the cause. In the present case, however, the notice required by this section was given to the defendants, and the justice thereby acquired jurisdiction to try the issue before him, and to render judgment accordingly. There is no provision of the code which requires the justice to allow the defendant any time within which to answer the complaint in case his demurrer shall be overruled, or to give to him any notice that his demurrer has been overruled, but by the terms of the sections above referred to the justice is authorized to proceed forthwith with the cause, and if no issue of fact has been presented for trial, to render judgment in favor of the plaintiff.
As the justice's court had jurisdiction to render the judgment, any error that may have been committed by it in its action cannot be reviewed upon certiorari .
The judgment appealed from is reversed.