Santini v. Justice's Court

24 P.2d 761, 218 Cal. 671, 1933 Cal. LEXIS 560

Opinion

SHENK, J.

The action- was on a promissory note and the judgment was for the plaintiff in the sum of $92.50. On appeal to the superior court the judgment was affirmed and the record returned to the respondent court. The issuance of an execution is threatened and it is sought in this proceeding to restrain its issuance.

The foundation for the petitioner’s position is the fact that the justice of the peace who tried the cause in the respondent court was called in by the respondent justice pursuant to section 105 of the Code of Civil Procedure, but was ineligible to sit in that court because he was a justice of a township of less than 30,000 population and was not and is not admitted to practice before the Supreme Court of this state as required by section 922 of the Code of Civil Procedure and section 4185a of the Political Code.

In the original briefs counsel discussed rather extensively the rules which should apply under the facts presented as to the right of the justice of the peace called in to try the ease in the respondent court. By a supplemental brief the respondents have raised the question of the propriety of the writ of prohibition to restrain the issuance of an execution (a ministerial act) to enforce a judgment.

The point thus raised effectually disposes of the present proceeding in favor of the respondents. (Harris v. Recorder’s Court, 15 Cal. App. 103 [113 Pac. 687], and cases therein cited; 50 C. J., p. 660.)

The peremptory writ is denied and the proceeding is dismissed.

Seawell, J., Waste, C. J., Preston, J., and Langdon, J., concurred.