Opinion
APPLICATION for a writ of review to the Superior Court of the county of San Joaquin.
COUNSEL:
J. H. Budd, for Petitioner.
J. C. Campbell, for Respondent.
OPINION
McKEE, Judge
[4 P. 493] The facts appear in the opinion of the court.
The case in hand originated in an action brought in a Justice's Court to recover damages for the detention of some milch cows, to whose possession the plaintiff, as owner of the cows, claimed to be entitled.
The answer filed in the Justice's Court was a general denial. Upon that the case was tried and the defendant had judgment, from which the plaintiff appealed on questions of both law and fact. At the trial of the case on appeal, the Superior Court allowed the defendant to amend his answer, by pleading justification for taking and detaining the cattle. To this ruling the plaintiff excepted; and it is contended that the court, in allowing the amendment, exceeded its jurisdiction, because it had only acquired jurisdiction by the appeal, to try the action upon the issues raised by the pleadings in the Justice's Court.
But it must be conceded that the court had jurisdiction to try the action de novo ( § 976, Code Civ. Proc.); and such a trial must be conducted in all respects as trials in other cases. All the provisions of the Code of Civil Procedure relative to the trial of cases which have been commenced within the original jurisdiction of the court are made applicable to the trial de novo of cases within its appellate jurisdiction. (§ 980.)
Now there is no question that, on the trial of a case originating in the Superior Court, an amendment to a pleading in the case in any particular, may be allowed by the court, upon such terms as may be just. This may be done at any time in the course of the proceedings, or during the trial, where the ends of justice may be promoted thereby (§ 473); and being allowable on the trial of a case within the original jurisdiction of the court, it is also allowable on the trial de novo of a case within its appellate jurisdiction.
Jones v. The County of El Dorado, 10 Cal. 19, and Funkenstein v. Elgutter, 11 Cal. 328, are not analogous. It is true that in each of those cases an appeal had been taken on questions of both law and fact, from the judgment of a Justice's Court to the county court; but the judgment was by default, and on appealing from it there was no statement of the grounds upon which the appellant intended to rely on the appeal on questions of law, nor was there any issue of fact raised in the Justice's Court. That being the condition of the case on appeal, there was no question of law to decide, and no question of fact to try; therefore the appellate court acquired no jurisdiction to retry the case. ( Rickey v. Superior Court, 59 Cal. 661.)
But in the case in hand there were issues of fact which the court had jurisdiction to retry; and as we have shown that this jurisdiction included authority to allow any amendment to the pleadings by which the issues were raised, so as to enable the parties to present the case on its merits, the allowance of such an amendment was a matter within the sound discretion of the court, and is not reviewable on certiorari even if the exercise of the authority by the court was irregular or erroneous. It is sufficient that the a ct of the court was within its jurisdiction. [4 P. 494] ( Carriaga v. Dryden, 29 Cal. 307; Kitts v. The Superior Court, 62 Cal. 203.)
Application for a writ of certiorari denied.
ROSS, J., and McKINSTRY, J., concurred.