Armantage

This is an application for a writ of certiorari, otherwise called the writ of review.

The facts are, that E. B. Mutter commenced an action in the justice’s court against Armantage, the plaintiff herein. Summons was duly served on Armantage, who thereafter demurred to the complaint, and on said demurrer being overruled, answered. The case was thereafter set down for trial. The notice that the case had been set for trial was not served like a summons, as is required by section 850 of the Code of Civil Procedure, but was served by mail only. Armantage did not appear at the time fixed for trial, and the justice at said time tried the case in the absence of Armantage and rendered judgment against him. Thereafter Armantage duly appealed to the defendant, the superior court, on questions of both law and fact. The ease was set for trial in the superior court. The appellant appeared and objected to a trial, and asked that the judgment of the justice be reversed and the cause remanded to the justice’s court. The superior court refused to make such order, but proceeded, against the objections and exceptions of the appellant, Armantage, to try the issues of fact, and rendered judgment…

I concur, "with some hesitation, in the conclusion reached by the majority of the court. By the provisions of the Code of Civil Procedure bearing upon the subject, the party appealing from the judgment of the justice’s court is allowed thirty days after the rendition of judgment to perfect his appeal (sec. 974). In the following section two methods of appeal are provided, namely: 1. Within ten days on a statement of the case, on questions of law alone; 2. Within thirty days without a statement, on questions of fact or of law and fact. In the latter ease, the proceeding is not, properly speaking, an appeal; nor is the judgment said to be appealed from reversed, as it would be—if found erroneous—on appeal. But the judgment is vacated by the mere act of the so-called appellant, in the exercise of. his option, and the cause transferred for all purposes to the superior court; which thereupon acquires original, or quasi-original, jurisdiction of the case. (Bullard v. McArdle, 98 Cal. 358 , [ 35 Am. St. Rep. 176 , 33 Pac. 193 ]; Holbrook v. Superior Court, 106 Cal. 593 , [ 39 Pac. 936 ].) The plain meaning of these provisions, therefore, seems to be, that the losing party shall have the…