De Jarnatt v. Marquez

J. L. DE JARNATT, Respondent, v. PASCUAL MARQUEZ, Appellant

De Jarnatt v. Marquez, 60 P. 45 (Cal. 1900)

Court: California Supreme Court · State Highest Courts
Decided: February 14, 1900
Docket: No. L.A. No. 752.
Judges: Henshaw
Citations: 60 P. 45127 Cal. 5581900 Cal. LEXIS 694

Headnotes

Promissory Note—Attorneys’ Fees — Special Damage.—Attorneys’ fees, provided for in a promissory note in the event of suit, are in the nature of special damage under the contract. Id.—Action in Justice’s Court — Jurisdiction—Void Judgment.—A justice’s court has no jurisdiction of an action upon such a promissory note, where the amount of the principal sum and the attorneys’ fees demanded under the contract exceed the sum of three hundred dollars; and the judgment rendered in such action is void. Id.—Judgment in Superior Court—Appeal to Supreme Court.—Where the superior court, upon appeal from the void justice’s'judgment, tried the case, and rendered a judgment exceeding three hundred dollars, exclusive of interest, the supreme court has jurisdiction of an appeal from that judgment, even though it be void; and such an appeal cannot be dismissed for want of jurisdiction. Id.-JDismissal op Appeal—Sufficiency of Undertaking—Failure of Sureties to Justify — Attorney as Surety.—The appeal to the supreme court from such judgment of the superior court cannot he dismissed upon the ground that the sureties upon the three hundred dollar' undertaking upon appeal failed to justify, nor upon the ground that one of the attorneys of appellant became a surety upon tlie undertaking, in violation of a rule of the superior court. Id.—Violation op Rule op Superior Court Cognizable Therein.— The violation of a rule of the superior court that an attorney for the appellant shall not become a surety upon the undertaking on appeal is a matter cognizable before that court, to be dealt with as it may be advised.

Summary

MOTION in the Supreme Court to dismiss an appeal from the Superior Court of Los Angeles County. Lucien Shaw, Judge.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Henshaw

HENSHAW, J.

This is an application to dismiss defendant’s appeal. Plaintiff commenced an' action in the justice’s court to recover upon a promissory note made by defendant in the sum of two hundred and fifty dollars. The instrument provided for the payment of attorneys’ fees in the event of suit. In his complaint in the justice’s court plaintiff alleged that the sum of one hundred dollars was a reasonable attorney’s fee. He asked judgment for the face of the note, with interest, and attorney’s fee in the sum of one hundred dollars. Defendant joined issue in the justice’s court, and, after trial, appealed to the superior court from the judgment given against him. The appeal was upon questions both of law and fact. After trial de novo in the superior court, judgment was again given for plaintiff for the amount of the note with interest, and for attorneys’ fees fixed in the sum of one hundred dollars. From the judgment of the superior court defendant took the appeal to this court which is here sought to be dismissed.

Attorneys’ fees under a contract such as this are in the nature of special damage.

(Prescott v. Grady, 91 Cal. 519 ;

Clemens v. Luce, 101 Cal. 432 .) Plaintiff’s demand, therefore, in his action in the justice’s court was for two hundred and fifty dollars, the principal sum of the promissory note, and the one hundred dollars pleaded by way of special damage as a reasonable attorney’s fee. The justice’s court was therefore without jurisdiction and its judgment void. (Code Civ. Proc., sec. 112, subd. 1.) Whether or not, upon- a showing of these facts, the'superior *560 court should have declared the judgment of the justice’s court void, still as it tried the case and rendered a judgment against defendant for over three hundred dollars, he has the right of appeal to this court from that judgment, even though it be void.

The fact that the sureties did not justify upon the three hundred dollar appeal bond is not a ground for dismissal of the appeal.

(Hill v. Finnigan, 54 Cal. 311 ;

Tompkins v. Montgomery, 116 Cal. 120 .) Nor is the further fact that one of the attorneys of appellant became a surety upon the undertaking on appeál in violation of a rule of the superior court a ground of dismissal. It is a matter cognizable before that court, to be dealt with as it shall be advised.

The motion to dismiss is denied.

McFarland, J., Temple, J., Van Dyke, J., Harrison, J., and Garoutte, J., concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 15 cases

View all citing references →

Relies on it most ⓘ

Bovee v. Helland156 P. 416 (Mont. 1916)
Schuler-Knox Co. v. Smith144 P.2d 47 (Cal. Ct. App. 1943)
Murphy v. F. D. Cornell Co.294 P. 490 (Cal. Ct. App. 1930)
Garland v. Smith21 P.2d 688 (Cal. Ct. App. 1933)
Miller v. Ambassador Park Syndicate9 P.2d 267 (Cal. Ct. App. 1932)
Holm v. Davis47 P.2d 537 (Cal. Ct. App. 1935)

Most recent

Mumaw v. City of Glendale270 Cal. App. 2d 454 (1969)
WAGNER Et Ux. v. ANDERSON250 P.2d 577 (Utah 1952)
Schuler-Knox Co. v. Smith144 P.2d 47 (Cal. Ct. App. 1943)
Holm v. Davis47 P.2d 537 (Cal. Ct. App. 1935)
Morris Plan Co. v. Kahen26 P.2d 855 (Cal. Ct. App. 1933)
Garland v. Smith21 P.2d 688 (Cal. Ct. App. 1933)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

Depth	Case	Cited by
	Clemens v. Luce, 35 P. 1032 (Cal. 1894)	23
	Hill v. Finnigan, 54 Cal. 311 (1880)	16
	Tompkins v. Montgomery, 47 P. 1006 (Cal. 1897)	14

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