¶1I concur, but express no opinion upon the question as to the proper remedy. *345Section 850, Code Civil Procedure, provides that “when all parties served with process shall have appeared .... the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendants who have appeared thereof.” If this requirement be jurisdictional, and the time for appeal elapsed before defendant had notice that the case had been set for trial, a trial had and judgment entered against him, it would seem to be a harsh rule which would preclude him from showing upon certiorari that he had never had any notice of the trial; because it must be remembered the justice is not required to enter in his docket any minute of the service of notice of the time of trial, nor is he required to file any proof of such service (section 911, Code Civ. Proe.), and there is nothing in the record, therefore, to show that judgment has been entered against the defendant without a hearing or notice of hearing.
74 Cal. 341
Weimmer v. Sutherland
Decided December 18, 1887
California Supreme Court · decided 1887-12-18
<p>Justices’ Courts—Provisions of Code Applicable to — Powers of, how Determined. —When that part of the Code of Civil Procedure which expressly deals with proceedings in justices’ courts prescribes the powers of those courts in relation to a general subject about which the powers of courts of record are expressly prescribed in another part of the code, then the powers of the justices’ courts with respect to that subject are to be determined by the provisions of the code expressly applicable to them, and not by the provisions expressly applicable to courts of record.</p> <p>Id.—Power to Set Aside Judgments. —Justices’ courts have no power to review their own judgments, unless in some method expressly provided by law.</p> <p>Id.—Order Setting Aside Judgment—Certiorari—Judgment by Default. — Under section 859 of the Code of Civil Procedure, a justice’s court has no power to vacate its judgments, except judgments by default, and an order attempting so to do, not being appealable, will be annulled on certiorari.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1887-12-18
How this case has been cited
Cited by 10 later decisions — most recently July 1920
10 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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