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The petitioner commenced this proceeding in the superior court for the purpose of annulling an order made by a justice of the peace in San Joaquin County, setting aside the service of a summons made in a certain action pending in the court of said justice of the peace, wherein the petitioner was plaintiff, and one Quackenbush defendant. Upon the return made to the writ of certiorari, the superior court dismissed the proceeding, and the petitioner appeals.

The justice of the peace had jurisdiction to entertain the motion of the defendant therein to set aside the service of the summons made upon him in a county other than that in which the action was pending. Section 848 of the Code of Civil Procedure, so far as applicable to this case, is as follows: —

It is clear that a defendant has the right to move the court to set aside the service of a summons attempted to be made in violation of the provisions of this section, and the motion is properly made, as it was in this case, upon affidavits showing the grounds of the motion. The *58 fact that the unverified complaint filed in the action alleged that the contract sued upon was to be performed by the defendant therein in the county…