SELLERY ET AL v. WARD ET AL

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District Court of Appeal, Second District, Division 3, California.

SELLERY ET AL. v. WARD ET AL.*

Civ. 12878.

Decided: March 25, 1942

Newton M. Todd and Fred A. Watkins, both of Long Beach, for appellants. James E. Pawson, of Long Beach, for respondents.

The defendants Ward have appealed from a judgment against them in favor of plaintiffs for $1,016.60. On examination of the complaint on which this judgment was rendered we conclude that the case stated by it is not within the jurisdiction of the superior court, and the judgment must be reversed for that reason. This point is not made by the appellants, but it is plainly apparent to us; and since a judgment rendered by a court without jurisdiction of the subject matter is void (Cook v. Winklepleck, 1936, 16 Cal.App.2d Supp. 759, 768, 59 P.2d 463), we should reverse it even though the point is not raised by the parties. Jurisdiction of the subject matter cannot be conferred by consent, agreement or waiver of the parties. Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. at page 769, 59 P.2d 463; Norton v. Baranov, 1935, 4 Cal.2d 443, 50 P.2d 67.

By section 5, Article VI of the Constitution, as amended in 1928 and still in force, the superior courts have “original jurisdiction in all civil cases * * * (except * * * cases and proceedings in which jurisdiction is or shall be given by law to municipal * * * courts) * * *.” Section 89 of the Code of Civil Procedure confers upon municipal courts jurisdiction “In all cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to two thousand dollars ($2,000) or less, except cases which involve the legality of any tax, impost, assessment, toll or municipal fine.” Under the constitutional provision above quoted, there can be no concurrent jurisdiction of superior and municipal courts (at least, in the same county; see section 82 of the Code of Civil Procedure); a case within the jurisdiction of a municipal court is excluded from that of the superior court. Hopkins v. Anderson, 1933, 218 Cal. 62, 66, 68, 21 P.2d 560; Norton v. Baranov, 1935, supra.

The complaint filed by plaintiff, as amended before the trial, contained six purported causes of action, of which two, the third and fourth, may be conceded to be within the jurisdiction of the superior court. The findings and the judgment, respectively, recite receipt of evidence on the first cause of action and that all the causes of action except the first were dismissed without prejudice. Such a dismissal is substantially the same in its effect as an amendment eliminating the dismissed causes of action from the complaint. It is settled that after such an amendment the jurisdiction of the court is to be determined by consideration only of the part of the complaint remaining. Jacobson v. Superior Court, 1936, 5 Cal.2d 170, 174, 53 P.2d 756. The same rule applies here. The action stood, after the dismissal, as if only the first cause of action had ever been stated in the complaint. If that cause of action was not within the jurisdiction of the court, no judgment could be given upon it.

The first cause of action, as amended, after alleging that the plaintiffs are husband and wife, that the defendants Ward stand in the same relation and that plaintiffs own six described lots of land in Long Beach, and stating the reasonable rental value of said lots, proceeds thus: “V. That on or about May 15th, 1937, said lots were leased and used from month to month thereafter and are still being used at the express instance and request of the defendants, and each of them, and for the use and benefit of the defendants, and each of them.

“VI. That the defendants, J. E. Ward and Cora B. Ward, have failed to pay said reasonable rental value per month and still continue to fail to pay the plaintiffs the reasonable rental value of said lots, as aforesaid.

“VII. That there is now unpaid as the reasonable rental value of said lots the sum of $800.00.”

Here is stated no case for relief like or analogous to that granted in courts of equity. The sole relief that could be granted on these allegations is damages. The answer consisted only of denials, and so could not affect the decision of the question of jurisdiction. The case is, therefore, not one in equity but is a case at law. 1 C.J.S., Actions, § 54, pp. 1153–1156; Traffic Truck Sales Co. v. Justice's Court, 1923, 192 Cal. 377, 383, 220 P. 306; Sturgeon v. Security First Nat. Bank, 1934, 139 Cal.App. 197, 199, 33 P.2d 874; Massachusetts, etc., Ins. Co. v. San Francisco–Oakland Terminal Rys., 1919, 39 Cal.App. 388, 178 P. 974. It is an action on an implied contract and would, at common law, have been deemed an action in assumpsit. 7 C.J.S., Assumpsit, Action of, § 1, p. 109; 3 Cal.Jur. 373. Since there are two municipal courts in Los Angeles County, where this action was filed, and the amount sued for is less than two thousand dollars, the superior court of that county had no jurisdiction of it upon the cause of action remaining after the dismissal, and should have proceeded under section 396 of the Code of Civil Procedure to transfer it to a proper court.

The judgment is reversed and the superior court is directed to proceed as directed by law to transfer the action to a proper court having jurisdiction of the subject matter thereof.

SHAW, Justice, pro tem.

SCHAUER, P. J., and SHINN, J., concurred.

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