E. WEIMMER et al., Appellants, v. JAMES SUTHERLAND, Respondent, 74 Cal. 341

McFarland, J. This is an appeal from a judgment of the superior court of Fresno County rendered upon a writ of certiorari directed to a justice’s court. James Sutherland (the respondent herein) brought an action in the justice’s court of A. A. Smith (appellant) against E. Weimmer and wife (also appellants herein). In said action in the justice’s court the defendants therein (Weimmer and wife) appeared and made a motion to quash the summons. The motion was denied, and they then demurred to the complaint. The demurrer was overruled; and then, on June 22,1886, they filed an answer.

On July 9th the case was set for trial for July 19, 1886, at one o’clock p. m. At the last-named time the defendants failed to appear, and the court, after having waited one hour, proceeded with the trial; and after hearing witnesses and taking evidence on the issues made by the pleadings, rendered judgment for the plaintiff therein (Sutherland). On July 26th, defendants, upon affidavits, moved the court to “ vacate and set aside ” the judgment upon the ground that defendants had no notice of the time of trial.

The hearing of the motion was continued to September 10th, when the court found that defendants had not received notice of the day of trial (which notice seems to have been deposited by the justice in the United States mail, directed to defendants), and thereupon entered an order “ that said judgment is hereby set aside and vacated.” It does not appear that plaintiff had notice of this motion, or was present when it was heard. On the application of the plaintiff, Sutherland, the superior court granted a writ of certiorari to review the action of said justice vacating said judgment.

On the seventh day of January, 1887, after a full hearing, both parties being present by counsel, the superior court rendered judgment that the said order of said justice’s court vacating the said judgment in said court was void, and of no effect, etc. From this judgment of the superior court this appeal is taken. Justices’ courts have no power to review their own judgments, unless by some method expressly provided by law. In Winter v.

Fitzpatrick, 35 Cal. 269, it was held that a justice of the peace could not vacate a judgment rendered by him, and that an order attempting to do so, not being appealable, should be annulled on certiorari. However, at the time Winter v. Fitzpatrick was decided, the civil practice act provided that only those sections embraced in the title which prescribed the proceedings in justices’ courts, and such, other sections as were specially mentioned in that title, should be applicable to justices’ courts. At the present time,

section 925 of the Code of Civil Procedure is as follows: — “ Justices’ courts being courts of peculiar and limited jurisdiction, only those provisions of this code which are in their nature applicable to the organization, powers, and course of proceedings in justices’ courts, or which have been made applicable by special provisions in this title, are applicable to justices’ courts and the proceedings therein.” It is therefore argued that Winter v. Fitzpatrick has no bearing on the present case; and that by virtue of said

section 925 all the broad powers granted to courts of record by

section 473 of the Code of Civil Procedure may be exercised by justices’ courts. The language of

section 925 is certainly of difficult construction; and cases might well arise where it would be extremely doubtful whether or not certain acts of a justice’s court were justified by its provisions. It will be observed, however, that the

section expressly preserves the notion of the “ peculiar and limited jurisdiction ” of these courts, and, morever, that its general character is negative rather than positive. The grant is somewhat in the shape of a parenthesis in a clause of limitation.

If, therefore, that part of • the code 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, then we think that the powers of the justices’ courts with respect to that subject are to be looked for in the former and not in the latter provision. Now, the power in question here,—i. e., the power to relieve 'from a judgment taken through surprise, excusable neglect, etc.,—is expressly given to courts of record by

section 473, and is expressly given to justices’ courts by

section 85.9. Both sections relate to the same general subject. But while

section 473 gives this power to relieve, in general terms and in all cases, within six months in some instances, and one year in others, after judgment,

section 859 confines the power in justices’ courts to cases of a “judgment by default,” and limits the time to “ten days after the entry of the judgment.” We think, therefore, that the latter

section is determinative of the question here involved, and not

section 473. And of course, in the case at bar, there was no “judgment by default.” A default occurs when a defendant fails to answer or demur as described in sections 850 and 871 et seq. Not being a judgment by default, the defendants could have appealed to the superior court; and if aggrieved, that was their remedy. The judgment of the superior court is affirmed. Temple, J., Sharpstein, J., Searls, O. J., and McKinstry, J., concurred.