This appeal is from a judgment rendered upon certiorari hy the superior court of Marin County, affirming the judgment of a justice of the peace.

A case was tried by the justice, and at the conclusion of the trial was taken under advisement, and the parties were allowed to file briefs. Some months afterwards, the justice rendered judgment in favor of the plaintiff in that action. The defendant subsequently commenced this proceeding.

His contention is, that a justice of the peace has no authority to take a case under advisement, and that a failure to decide a case at the conclusion of the trial works a discontinuance of the cause. This contention is based upon section 892 of the Code of Civil Procedure, which reads: “When the trial is by the court, judgment must be rendered at the close of the trial.”

The point was made and expressly decided in Heinlen v. Phillips, 88 Cal. 557 . Counsel for the appellants contends that all that was said upon the subject in that case was obiter, because it was also urged and decided in that case that the justice of the peace had no power to set aside the judgment, it not being a judgment by default. It was held in Winter v. Fitzpatrick, 35 Cal. 269 , that a justice could not vacate a judgment entered by him. This question was reconsidered in Weimmer v. Sutherland, 74 Cal. 341 , and it was there said that the justice court could only vacate a judgment in cases where it was expressly authorized by statute; and it was authorized by section 859 of the Code of Civil Procedure to do so with reference to judgments entered upon a default, but could do so in no other cases.

It seems that in Heinlen v. Phillips, 88 Cal. 557 , notwithstanding these decisions, respondent to the writ again raised the point, but, in this court at least, his main reliance was upon the proposition that the judgment was void, and therefore could have been vacated at any time, and that, at all events, there being no valid judgment in the case, the order setting the case for trial was valid. The point was properly before the court, and necessarily decided. A decision of the other question did not dispose of the case, for if the judgment which the justice had entered was void, it was properly struck out of the record. We have held that it is always in the power of the court to erase from its records a void judgment. The decision was one, therefore, which the court was bound to make. Without the decision upon this point, the judgment entered would have been an absolute non sequitur, provided it had also appeared that the contention was made that the judgment which the justice had set aside was a void judgment.

The judgment is affirmed.

McFarland, J., and Henshaw, J., concurred.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 31st of July, 1901:—