Desmond v. Superior Court

59 Cal. 274

• Court: California Supreme Court
• Decided: July 15, 1881
• Docket: No. 7,769
• Status: Published

Opinion

The Court:

This is an application for a writ of review. An action was commenced in a Justice’s Court against the petitioners herein, and a summons issued, which they claimed to have been defective. They moved in that Court to set aside the service and vacate the summons, which motion was denied. They then answered, the case was tried, and judgment rendered against them. They appealed to the Superior Court on questions of law and fact, where the motion to vacate and set aside was again made and again denied. A trial was then had in the Superior Court and judgment went against the defendants.

■ It is claimed that we can review these proceedings, upon the ground that the Superior Court exceeded its jurisdiction in denying defendants’ motion. If it was an error (which we do not admit), it was not an error in excess of its jurisdiction; it had jurisdiction to determine whether or not the motion should he granted. It is sufficient in this case to say that the defendants, by pleading to the merits of the case, waived any objection they might have had to the alleged defect in the process and its service.

Writ denied and proceedings herein dismissed.