Opinion
Civ. No. 780.
January 7, 1910.
PETITION for writ of review to annul a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.
The facts are stated in the opinion of the court.
Wyckoff Gardner, for Petitioner.
This is an application for a writ of review, to annul a judgment of the superior court of Santa Cruz county, given and made upon an appeal from the justice's court.
It appears that upon the trial in the justice's court, the justice of the peace, upon motion of the defendant in the case, granted a nonsuit. The plaintiff appealed to the superior court on questions of both law and fact, but did not prepare or have settled any statement of the case. The claim is now made that the superior court had no jurisdiction except to try a simple question of law, as to whether or not the justice's court erred in granting the nonsuit. It may be conceded that this is true, provided the petitioner had properly raised the question and insisted upon his right in the trial court. However, instead of doing so he appeared in said court, and consented to the case being set down for trial, and at the trial he appeared with his witnesses, and the case was tried anew in the superior court. Petitioner in no way even suggested the question he now attempts to raise to the trial court. Such court had jurisdiction of the parties and of the subject matter. As to the questions of law that might have been raised, and the proper rulings thereon, or as to the failure of the appellant to prepare and have settled a statement, they cannot be considered in this collateral proceeding. The petitioner voluntarily appeared and submitted the whole controversy to the superior court, and after such submission, and after a decision against him, he will not now for the first time be heard to question the power of the trial court to determine the very question which he had invited the court to determine. ( De Jarnett v. Marquez, 132 Cal. 700, [ 64 P. 1090], and cases cited; Hart v. Carnell-Hopkins Co., 103 Cal. 133, [37 P. 196].) To allow the writ to issue under the circumstances of this case would be to encourage an utter disregard of the due and orderly proceedings in courts of justice.
The writ is denied.