Daily Los Angeles herald., 1878-11-02
Supreme Court Decisions

Supreme Court Decisions.
Thursday the following opin-
ions were filed in the Supreme e
Court:
BY the Court. Filed Oct. 81, 1875
GREGG
VS.. GOAT.
PEMBERToN.
The defendant appealed from the
order refusing to change the place
of trial, and from the final jndg.
ment, ordering a peremptory writ
of mandate to be issued. The
plaintiff contends that an appeal
will not lie because the judgment
was satisfied-that is to say, that
the defendant had obeyed the per-
emptory mandate. For proof ol
that fact, he relies upon the per.
emptory writ, the Sheriff's return
Of service, and the plaintiffs ac-
acknowledgement of satisfaction of
the writ, by means of the payment
of the warrants indorsed upon the
writ. But neither the writ, the re
turn nor the plaintiffs indorse-
ment constitutes portion of the
Judgment roll, and therefore cannot
be considered on an appeal from
the judgment. They clearly do not
constitute part of the record on
the appeal from the order refusing
to change the place of trial.
We are not to be understood as
holding that If these papers had
been presented on motion to dis
miss the appeals, or some other
proper proceeding, the defendants
right of appeal would be deem ed to
have been waived or cut off by his
obedience of he peremp.ory writ.
With respect to the motion for O
change OF the place of trial, it Is
sufficient to say that the defend
ants affidavits do not show that
the Judge who tried the action was
interested therein. The fact that
he had formerly held warrants
Issued upon the same consideration
as those involved in the action,
does not make him interested in
the last mentioned warrants, or in
the action to compel their pay
ment.
The plaintiff moved for and the
court gave judgment for the plain
tiff upon the pleadiugs. The answer
stated several facts as defenses to
the action; among Others, that
John Nj. Brite, one of the two who
voted for the purchase by the
county of the toll roads, was not
then u Supervisor of that county,
also that no commissioners were
appointed to appraise the value of
the old Baker grade toll road one
of the two roads mentioned III the
resolution. 1t is unnecessary to ex-
anime the answer further at this
time. 1t was error to order jud q.
ment for the plaintiff until the is
sues presented by the answer had
been disposed of.
Order refusing to change place OF
trial affirmed, judgm ent reversed
and cause remauded for a new
trial.
CoNCURRINa OPINION.
concur in the Judgment of re-
versal and in the opinion, except
in SO far as it holds that the Judge
was not disqualified on the fact!
stated in thu aft ilvits. On that
point | dissent. CROCK EFT, J.
by the Court. Filed Oat. 81, 1878.
p.nssaras. nssr" = No. o,o''.
Upon the authority of Gregg VS.
Pemberton, No. 6,0i7, order refus-
ing to change the place of trial af
firmed and Judgment reversed anc
cause remanded for new trial.
By the Court. Filed Oct. 81, 1878
fnSsLH q: No. s.o7s.
WE'LL.
This action was brought unde
the provisions of s. 1917 of the Po
litical Code, for the recovery of s
district school tax. Judgment bI
default WAS entered by the clerk
The summons notified the defend
ant that if he failed to appear an,
answer the complaint the plaintiff
"will take judgment against yo,
"by default for tho above name,
"sum aud accruing costs.n
1t is provided by s. 1852 OF th
Political Code that 1.-THE law regu
"lating proceedings in civil case
"in the courts OF justice in thi
estate, 80 far as the same are no
inconsistent with the provision
"of this article, is hereby mad,
applicable to proceedings unde
"this article" That article doe
not contain any provisions, pre-
scribing the form of tho summons
wehre the suit is against the per
son indebted for the tax; and there
fore it must conform to the provis
Ions of the Code of Civil Proceed
ure. S. 407 of that Code provide
that In an action other than an &C
tion arising on contract for the re
covery of money or damages only
the summons must contain o "no
"tice that unless the defendant ap
"pears and answers, the plaintiff
"will apply to the court for the re
"lief demanded in the complaint.
The publication of the SUNNI IN
which omitted the above notice
did not authorize the clerk to ente
the default of the defendant. Th
clerk is authorized by 8. 5s5, G, G. |
to enter judgment by default onl.
in "an action upon contract 70
"the recovery of money or damage
"only.n In other eases, application
for judgment must be made to th
court.
Judgment reversed and cause re
manded.
os-o-sN
Organ-a new four sett of reed