upon any question which involves the title or possession of real property, or the legality of any tax, impost, assessment, toll or municipal fine, and that no issue presenting such question can be tried by such court, and if it appear from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title, or possession to real property, or the legality of any tax, impost, assessment, toll or municipal fine, the justice must suspend all further proceedings in the action, and certify the pleadings, or if the pleadings are oral, a transcript of the same from his docket to the clerk of the Superior Court of the county, and from the time of filing such pleadings or transcript with the clerk, the Superior Court shall have over the action the same jurisdiction as if it had been commenced therein.16 Section 92 of the same code prescribes how such pleadings and transcripts shall be certified from a justice's court of a city and county containing over one hundred thousand inhabitants. A justice of the peace has jurisdiction of an action for damages for trespass on real estate when the right of possession of the premises is not put in issue by the pleadings or controverted on the trial.17 A justice court has jurisdiction of an action for a penalty given by statute when the amount of the penalty demanded is less than three hundred dollars.18 The question of the legality of any tax, impost, assessment, toll or municipal fine cannot be raised in a justice's court unless by an answer on oath as provided in section 838 of the Code of Civil Procedure, and unless so raised no evidence as to such legality can be received on the trial of the action, either in the justice's court nor on an appeal to the Superior Court.19 The question as to whether the right of possession of or title to real estate is involved in an action in a justice's court should be raised by the answer of the defendant under oath, as provided in said section 838, and unless so raised, or the statement of the cause of action shows that there was a question of title or the 16. Code of Civil Procedure, Sec. 838. 17. Cornett v. Bishop, 39 Cal. 319: Livingston v. Morgan, 53 Cal. 23. 18. Thomas v. Justice Court, 80 Cal. 40. 19. Williams v. McCartney, 69 Cal. 556. right of possession of real estate involved in the action, or if the question of title comes incidentally in question, the justice's court has jurisdiction to try the action, if the amount sought to be recovered in the action is less than three hundred dollars.20 The word "assessment" used in section 5, article VI of the constitution, and in said section 838 of the Code of Civil Procedure does not include assessments made by a private corporation under section 330 of the Civil Code, and a justice of the peace cannot under the provisions of said section 838, transfer an action of which that court had jurisdiction to hear and determine to a Superior Court to be tried in that court.21 The jurisdiction of the former district court to try an action transferred to it from a justice's court under said section 838 is special, and the action must be tried or determined in the district court, upon the issues raised in the pleadings made in the justice's court." 22 There is no provision in the Code of Civil Procedure for transferring any action commenced in a police court to a Superior Court for trial.23 A justice court cannot transfer an action to a justice's court of another county for trial. If an action be brought in a justice's court, and the defendant resides in another county and wishes the action tried in the county of his residence, he must, when he answers or demurs to the complaint in the action, file the requisite affidavits and demand for the trial of the action in the county of his residence, and unless he does so he cannot have the action tried in the county of his residence, although he files in the justice's court his answer under oath as required under such section 838 of the Code of Civil Procedure for having the pleadings certified to a Superior Court for a trial of the action.24 When a county by ordinance imposes license taxes, and in such ordinance provides that an action to collect such taxes shall be commenced in the name of the people, such action must be 20. Schroeder v. Wittram, 66 Cal. 636. 21. Arroyo D. & W. Co. v. Superior Court, 92 Cal. 47. 22. City of Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143. 23. Same case, p. 148. 24. Powell v. Sutro, 80 Cal. 559. commenced in the name of the people, and if, in an action commenced in a justice's court to collect such license tax, it appear by the verified answer of the defendant that the action would necessarily involve the legality of the tax, the justice should suspend proceedings in the action and certify the pleadings to the Superior Court of the county.25 When the jurisdiction of a court depends on a fact that is litigated, and such fact is adjudged in favor of such jurisdiction, such adjudication is conclusive evidence of the jurisdiction until set aside or reversed by a direct proceeding.2 26 Pleadings in a justice's court are not held to much strict ness.27 The court to which an appeal is taken from the judgment of a justice's court can only try the issues which were tried in the justice's court.28 In that case there was no issue of fact in the lower court. An order of a justice's court sustaining a demurrer to a complaint is not a judgment of that court although stated in the docket of the justice's court to be a judgment.29 The entry of a judgment in a justice's court upon a verdict is a mere clerical duty, and the failure to enter such judgment does not make void an execution which recites that a judgment was entered in the action.3 30 A Superior Court has jurisdiction on an appeal on questions of both law and fact from the judgment of a justice's court to allow the plaintiff to amend his complaint in the action.31 An abstract of a judgment of a justice's court may be filed in the office of the county clerk of the county in which the judgment was rendered, and the judgment may be docketed in the judgment docket of the Superior Court thereof, and an execution may be issued thereon by the county clerk to the sheriff of 25. Monterey v. Abbott, 77 Cal. 541. 28. Jones v. County Court, 10 Cal. 19. 29. Sivers v. Sivers, 97 Cal. 518. 30. Lynch v. Kelly, 41 Cal. 232. 31. Kitts v. Superior Court, 62 Cal. 203; Ketchum v. Superior Court, 65 Cal. 494. any county in the state other than the county in which the judgment was rendered.32 A justice's court may issue an execution to enforce a judgment of that court, but this execution must be directed to the sheriff, or to a constable of the county in which the judgment was rendered.33 No authority is given by statute to a justice's court to issue an execution directed to any constable or sheriff other than to a constable or the sheriff of the county in which the judgment was rendered. It was held in Gates v. Lane, 49 Cal. 266, that a justice of the peace had jurisdiction to recall an execution issued by a county clerk on an abstract of a judgment of a justice's court rendered by such justice of the peace and filed with such county clerk. A judgment of a justice's court creates no lien upon land of a defendant, but an abstract of such judgment filed in the office of the county recorder of the county in which the lands are situated creates a lien on the land of such defendant in that county, and such lien continues for two years unless the judgment he sooner satisfied.34 The office of a justice of the peace cannot be created by a city charter.35 The judgment of a justice's court must be on the demand sued on, and within the pleadings.36 Proceedings in civil actions in police courts are prescribed in the Code of Civil Procedure, sections 929-933. I have considered thus far, remedies by the acts of parties and remedies in civil actions. Besides these remedies there are remedies given by what are designated in the Code of Civil Procedure as special proceedings; writs of review or certiorari, writs of mandate or mandamus, writs of prohibition, and writs of habeas corpus, were common law remedies, and, they are given in California by the constitution of that state. The estates 32. 35. Wood v. Sands, 102 Cal. 12. 36. Terry v. Superior Court. 110 Cal. 85. of deceased persons, so far as the personal property of such estates, and the probate of wills of decedents were concerned, were administered on in ecclesiastical courts in England; courts of equity in England had to some extent jurisdiction of the estates of deceased persons and as to the guardianship of minors; and every court had jurisdiction of matters of contempt, so far as such contempt affected that court or the proceedings therein; and the right of eminent domain is inherent in every government within whose jurisdiction the property sought to be condemned for a public use, is situated; the proceedings in all these matters and in other matters, where remedies by special proceedings are given in California, are regulated by sta tute. In California the person commencing a special proceeding may be designated as plaintiff and the adverse party as defendant;37 and in that state the definition of judgments, motions and orders in special proceedings are the same as they are in actions.38 In some of the states the person prosecuting such special proceeding may be and generally is designated as the petitioner, and the adverse party as respondent. I will now consider but very briefly the principal remedies by special proceedings. 37. Code of Civil Procedure, Sec. 1063. |