No. 2,388.

#### EDWARD P. REED, Respondent, *v.*FRANCISCO BERNAL *et al.,*Appellants.

Peaotioe on Appeal. — Appeal pkom Judgment. — New Tbial. — An appellant will not be permitted to allege that tbe evidence did not justify tbe judgment, except on an appeal from an order denying a motion for a new trial. *(Treadwell*v. *Davis,*34 Cal. 601), overruled on this point.

Ldem. — Appeal ebom Judgment on an Agbeed Statement op Pacts. — On an appeal from a judgment on an agreed statement of facts, wbicb forms a part of tbe judgment roll, tbe question may be raised whether tbe judgment is authorized by tbe agreed facts.

Justice op the Peace. — Jurisdiction op. — A judgment rendered by a Justice of tbe Peace, for tbe principal and interest due on a promissory note, and for a further sum of fifty per cent, on *the*amount of such principal and interest, under a stipulation to that effect contained in tbe note, wbicb latter sum added to tbe principal exceeds in amount *the sum*of three hundred dollars, is void for want of jurisdiction in tbe Justice to render it.

Appeal from the District Court of the Third- District, County of Santa Clara,

*J. A. Moultrie*and Wm. *M. Lovell,*for Appellants.

There #.re two propositions to which we invite the attention of the Court, either of which we respectfully submit is sufficient to defeat plaintiff’s action:

*First*— That tbe assumed or pretended judgment upon which this action was brought is in excess of the -amount for which a Justice of the Peace is authorized to render judgment; it exceeds that amount (exclusive of interest and cost) by tbe sum of $36.50,

The Justice of the Peace undertook to render a judgment for the sum of $422.98, principal and interest, due *629upon a contract for the payment of money; $125 thereof being principal; and for the further sum of $211.49 upon a special contract contained in the instrument or obligation sued on and for costs of suit.

That the Justice of the Peace had no power to render such judgment there can be no doubt. The jurisdiction of a Justice of the Peace is clearly defined and limited by statute. (See 1 yol. Hittell’s Digest, 1279, Sec. 48, 1 and 7 subdivisions.)

The parties, by their agreement or contract, could not extend the jurisdiction of the Justice beyond that conferred by the statute; and the Justice of the Peace in attempting to accommodate his proceedings to the stipulations contained in the contract of the parties transcended his jurisdictional limits and his judgment is therefore void. *(Chapman*y. *Morgan,*2 Green. (Iowa), 874; *.Fellet*v. *Engler,*8 Gal. 76.)

*S. 0. Houghton,*for Respondent.

No motion for a new trial was made in the Court below. The case comes to this Court on a statement of the testimony on an appeal from the judgment alone, and this Court will not review the testimony upon such appeal. Whether the evidence is sufficient to support the judgment or not, is a question this Court will not inquire into on this appeal. *(Cogliards*v. *Hoberlin,*18 Cal. 394.)

The judgment roll shows no error, nor does the record show that any error of law was committed by the Court below on the trial.

*Moultrie*and *Lovell,*for Appellants, in reply.

Questions of law only are sought to be reviewed on this appeal; the record contains a full statement of the facts and all the evidence. It has been so often held by this Court that a motion for new trial in such case was unnecessary and not the proper method to be adopted in order to have the proceedings of the Court below reviewed, that we deem it unnec*630essary to enumerate authorities upon tbe point, a few of which, however, are *Weatherhead*v. *Carroll,*(38 Cal. 549); *Harper*v. *Minor,*(27 Cal. 107); *Treadwell*v. *Davis,*(34 Cal. 601),

We think we have shown that the so-called judgment of the Justice upon which respondent’s action is brought is absolutely void, the testimony clearly demonstrates the proposition when tested by the authorities cited in our opening brief.

Cbookett, J.,

delivered the opinion of the Court, Temple, J., and Rhodes, C. J., concurring:

The plaintiff having recovered in the Court below, the defendants omitted to move for a new trial, but appealed from the judgment, and have brought up the evidence in a statement on appeal which assigns as errors certain rulings of the Court in respect to the admission of evidence; and also, that giving full effect to the evidence, the judgment should have been for the defendants. There appears to have been no contest as to the facts, the evidence of which was wholly record and documentary. The plaintiff claims that without a motion for a new trial this Court cannot review the evidence in order to ascertain whether the proper judgment was rendered upon the facts proved, even though there was no controversy as to the facts. But in the case of *Treadwell*v. *Davis,*(34 Cal. 601), this Court held to the contrary, and if that decision be accepted as a correct exposition of the law on this point it will be decisive against the plaintiff. Since that decision was rendered, and upon more mature reflection, and after a careful review of the authorities, I am satisfied the proposition announced in that case on this point is not tenable. When a party complains that the evidence was insufficient to justify the verdict, or decision, the appropriate remedy is by a motion for a new trial; and, in pursuing this remedy, the statute requires him to specify in his statement in support of the motion the particulars in which the evidence was insufficient. In this method the attention of the Court and counsel is particu*631larly directed to the precise point in which the evidence is alleged to be insufficient; so that on the trial of the motion the Court may review the evidence and exercise its judgment and discretion, either by upholding or setting aside the verdict or decision. It is conceded on all sides that if there be any evidence whatever tending to support the verdict or decision, its sufficiency can only be determined, and the evidence reviewed for that purpose, on amotion for a new trial; and we have repeatedly held, that if there be a substantial conflict in the evidence, this Court will not disturb the verdict or findings. It is equally well settled that if there be no findings in a cause tried by the Court, without a jury, and no proper exception for want of findings, a presumption arises that the Court found all the facts necessary to support the judgment. If there be no actual findings, the law implies findings sufficient to sustain the judgment. In all cases, therefore, whether there be a verdict or written findings, or only the findings which the law implies in support of the judgment, if it be claimed that there was no evidence whatever to support the judgment, this is only another mode of saying that the evidence was insufficient too justify the verdict, or findings, as the case may be. If the verdict or written findings support the judgment, it is too plain to admit of discussion that, so long as the verdict or written findings remain undisturbed, the judgment cannot be assailed on the ground that it is not justified by the evidence. Before the judgment can be attacked on this ground, the verdict or findings must be set aside, because not justified by the evidence; and this can only be done on a motion for a new trial. In other words, the attack must be, not upon the judgment directly, but upon the verdict or findings which support the judgment; and if the former be set aside, the latter will fall for want of support. No one, I apprehend, will question the correctness of this proposition, as applied to a judgment supported by a verdict or written findings. But in a cause tried by the Courtj if there be no written findings, nor any exception for the want of them, the law, as we have seen, will imply findings suffi*632cient to support tbe judgment, and tbe implied findings will bave tbe same legal effect in support of tbe judgment as if they bad been reduced to writing and duly filed. If it be claimed that these implied findings are not justified by tbe evidence, the objection must be taken in tbe same manner as if written findings bad been filed, to wit: by amotion for a new trial, supported by a proper statement, specifying tbe particulars wherein tbe evidence does not justify tbe supposed findings or tbe judgment which is based upon them. Nor will there be any practical difficulty in making tbe specifications. Tbe issues will determine what general facts must bave been found in favor of tbe prevailing party in order to sustain tbe judgment; and tbe specifications should be directly to these facts, or such of them as it shall be claimed were not proved. If there -was no evidence tending to prove any one or more of tbe material facts, tbe specification should so-state. By these means an opportunity is afforded to tbe Court to deliberately review tbe evidence and correct tbe error, if one has occurred. But if a different practice prevailed, and if tbe losing party was permitted to bring up the evidence by a statement on appeal, and to attack tbe judgment for tbe first time in this Court, on tbe ground that it was not justified by tbe evidence, leaving tbe implied findings still in force, no reason is perceived why tbe same course might not be pursued if there was a verdict on written findings, which were claimed to be wholly unsupported by any evidence. But as this practice finds no support in tbe statute in tbe latter case, it is clear there is no warrant for it in the former. In each case it would be an attempt not to set aside tbe verdict or findings, express or implied, because not justified by tbe evidence, but to vacate tbe judgment for that reason, leaving tbe verdict or findings in full force.

It will suffice to say on this point that such a practice is not authorized either by tbe letter or spirit of the-code; and experience has demonstrated that it would lead to the-most perplexing results. We announce it, therefore, as a settled rule in this Court, that an^ appellant will not be per*633mitted to allege that tbe evidence did not justify tbe judgment, except on an appeal from an order denying a motion for a new trial; and tbe case of *Treadwell v. Davis*is overruled so far as it contravenes this proposition. But we are not to be understood as intimating tbat if tbe case be tried on an agreed statement of facts, wbicb forms a part of tbe judgment roll, tbe question may not be raised on an appeal from tbe judgment, whether tbe judgment is authorized by tbe agreed facts.

Bor these reasons tbe defendants in this case will not be permitted to allege tbat tbe judgment was not justified by tbe evidence.

It appears, however, from tbe statement on appeal tbat tbe plaintiff, at tbe trial, offered in evidence in support of bis complaint tbe docket of tbe Justice of tbe Peace, showing tbe action of tbe Justice’s Court in an action pending therein between tbe parties to this action, and wbicb resulted in a judgment for tbe plaintiff for tbe sum of $600 and upward, and wbicb judgment is tbe foundation of tbe present action. He also offered in evidence a complaint and summons in said cause, from tbe former of wbicb it appears tbat tbe cause of action was a promissory note made by tbe defendants bearing interest, and wbicb contained a stipulation tbat if suit should be brought thereon there should be added to any judgment wbicb might be rendered therein for tbe plaintiff fifty per cent, of tbe principal and interest remaining unpaid at tbe date of tbe judgment. It appears from tbe justice’s docket tbat be entered a judgment in favor of tbe plaintiff for tbe sum of $422.98, as tbe principal and interest then due, and also for tbe further sum of $211.49, being fifty per cent, of tbe principal and interest, as authorized by tbe stipulation in tbe note. Tbe defendants objected to tbe admission of this evidence on tbe ground tbat tbe judgment was void on its ■face, as being in excess of tbe jurisdiction of tbe Justice. Unless tbe sum $211.49, wbicb was included in tbe judgment, can be treated as stipulated interest in addition to tbe two and a half per cent, per month which wáS reserved on *634tbe face of tbe note, it necessarily follows tbat tbe amount for wbicb tbe judgment was rendered exceeded $300, exclusive of interest. Tbe prinpipal sum was $125, and if to tbis be added tbe $211.49 it makes the sum of about $337 for wbicb tbe judgment was rendered, exclusive of interest. It is clear, I think, tbat tbe $211.49 cannot be treated as interest. It is not so denominated in the note, and was probably intended as a penalty or stipulated damages for a failure to pay tbe note without suit. But whatever else it may have been,' if it was not interest on tbe principal sum it is clear that tbe judgment exceeded $300, exclusive of interest and cost, and was, therefore, void for want of jurisdiction in tbe Justice to render it. Tbe Court therefore erred in admitting tbe judgment in evidence against tbe objections of tbe defendants, and for tbis error tbe judgment must be reversed, and it is so ordered.