Engleman

This is an application for a writ of prohibition, based upon the following facts:

It is conceded by petitioners that Christine Engleman, as the wife of H. B. Engleman, was a proper but not a necessary party in said justice’s court action, and that this matter should be determined on the real point in dispute, without pressing the claim that the parties are not the same.

The claims of the respective parties hereto arise out of the same transaction and out of the same accident, within the meaning of sections 438 and 442 of the Code of Civil Procedure. (Morris v. Warner, 207 Cal. 498 [ 279 Pac. 152 ].)

A somewhat similar controversy was passed upon by the Supreme Court in the case of Gregory v. Diggs, 113 Cal. 196 [ 45 Pac. 261 ]. In that case the defendant therein had sued the plaintiff therein in a justice’s court for a balance of $132 on the purchase price of certain goods. The plaintiff in that action had appeared in the justice’s court setting up a counterclaim for $500 damages, for breach of warranty. This plea having been stricken out by the justice on the ground that he had no jurisdiction in an amount over $300, an action was filed in the Superior Court asking that the…