People ex rel. Waldon v. Elkins

Rhodes, C. J., delivered the opinion of the Court, Ceockett, J., and Wallace, J., concurring: The writ of certiorari was issued, to bring up for review the proceedings of the County Court of Stanislaus County, in dismissing an appeal from a Justice’s Court. The appeal was dismissed on the motion of the respondent, on the ground that a certified copy of the Justice’s docket had not [647] been filed in the-County Court. The appellant objected to the hearing of the motion, because no notice had been served on him. The motion was filed the same day that the order was made, and no written notice of the motion was given. The petitioner’s position is, that the Court exceeded its jurisdiction in dismissing the appeal, because the motion was not served, and because the ground mentioned, is not a ground for the dismissal of an appeal. A failure to produce in the County Court, a duly certified copy of the docket of the Justice of the Peace, is a failure to prosecute the appeal, within the meaning of Section 367, of the Code. And if that were not a proper cause for the dismissal of the appeal in.this case, the order in that respect would be erroneous, but not void. (Morley v. Elkins, 37 Cal. 454.) On the point that the Court had no jurisdiction of the motion, unless it had been served, no authorities are cited by either party. The Court had acquired jurisdiction, both of the parties and of the subject matter of the action; and thereafter its orders, though they might be erroneous, would not be void, unless the statute has, in respect to the matter in question, prescribed a special mode of procedure and such mode has not been pursued. There is nothing of that character in relation to the dismissal of the appeal, in the sections of the statute regulating appeals to the County Courts. An appeal may be dismissed for the causes mentioned in the statute, “after notice.” The Court may err as to the kind or length of the notice, but if the appellant have notice in fact, it cannot be said that the order is void. The notice is not the means by which jurisdiction was obtained, for that had already been acquired. The writ will not lie to an inferior Court, to annul an order which is merely erroneous but not void, in a matter of which such Court has acquired jurisdiction. Writ dismissed,