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District Court of Appeal, First District, Division 1, California.


Civ. 9859.

Decided: August 27, 1935

Dunn, White & Aiken, of Oakland, for petitioner. McClymonds, Wells & Wilson, of Oakland, for respondent.

Pursuant to a writ of attachment issued out of the justice's court of Brooklyn township in Alameda county in an action brought by A. S. Downing against L. C. Chambers to recover on a promissory note, the sheriff of said county seized an automobile of which the petitioner herein, Rozelle L. Williams, claimed to be the owner. Thereafter and in conformity with the provisions of section 689 of the Code of Civil Procedure, the latter served upon the sheriff a verified third party claim to the automobile, and the sheriff exacted from Downing an indemnifying undertaking in a sum equal to double the value of the property levied upon. Downing then petitioned the justice's court as provided in said Code section to hear and determine the question of title to the automobile. Such a hearing was had, and subsequently, and after Chambers, the defendant in the action, had defaulted, the justice's court entered its judgment that Downing recover from Chambers the amount sued for in the action, and in the same judgment and as part thereof, declared that “* * * it is the judgment of the court that on September 18, 1934, at the time of levy on the writ of attachment in the above action, [the] * * * automobile * * * described in the third party's claim of Mrs. Rozelle L. Williams, was the property of L. Chambers, defendant.” Mrs. Williams took an appeal to the superior court, which Downing moved to dismiss; and on April 4, 1935, the motion was denied. A week later, however, the respondent superior court of its own motion made an ex parte order vacating its previous order and granted said motion. Accordingly the appeal was dismissed. Thereupon petitioner instituted the present proceeding in mandamus to compel the superior court to set aside its order of dismissal and to hear and determine the appeal.

We are of the opinion that petitioner was entitled to maintain the appeal. Section 974 of the Code of Civil Procedure provides: “Any party dissatisfied with the judgment rendered in a civil action in a * * * justice's court, may appeal therefrom to the superior court. * * * The notice [of appeal] must state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact or both.” Here the record shows that petitioner and the subject-matter of the title to said property were brought regularly before the justice's court pursuant to the application filed by Downing for the hearing and determination of such issue, after a ten-day notice of such hearing served upon petitioner; and at the conclusion of the trial of said issue, in which all parties interested participated, the justice's court incorporated its adjudication of the issue tried in its final judgment in the action. Express reference was made therein to petitioner by name and to the nature of her claim, and therefore, since her property rights were adversely affected by such judgment, her status, in our opinion, came within the meaning of the opening clause of said section 974, which declared that “any party dissatisfied with the judgment” may appeal from the whole or any part thereof.

It is argued in behalf of the respondent that the result of the determination of title to property by a justice's court pursuant to the provisions of said section 689 cannot be considered part of the judgment; that said section contemplates a separate proceeding of a summary character, the result of which is not res judicata; and that since the Code does not specifically provide an appeal from such an adjudication, the remedy of an aggrieved third party claimant is by way of an action for conversion. There is no language used in said section 689 implying, however, that such adjudication shall not be embodied in the judgment, nor has respondent cited any cases so holding. It would seem to follow necessarily, therefore, that inasmuch as such adjudication was incorporated in the judgment and made part thereof, a right of appeal therefrom was available to petitioner under the broad terms of the opening clause of said section 974. The argument advanced in behalf of respondent suggests several other questions, namely, whether in the state of the record here presented an appeal from the judgment was petitioner's exclusive remedy, or whether she was afforded an alternative remedy by way of an action for conversion; also whether an appeal is the proper remedy where the justice's court adjudication of title is embodied in a separate order made prior to or at the time of the rendition of the final judgment, or where its adjudication is made subsequent to the entry of final judgment, as in cases of property seized under process of execution. We need not concern ourselves with those questions here, however, because a solution thereof is not essential to a determination of the particular proceeding before us; nor could it be helpful in future cases for the reason that the uncertainty heretofore existing as to the nature of the remedy to be invoked in all cases arising under section 689 has been done away with by a 1935 legislative revision of said Code section, wherein it is provided, among other things, that “an appeal lies from any judgment determining title under this section, such appeal to be taken in the manner provided for appeals from the court in which such proceeding is had.”

Nor do we find any merit in respondent's remaining point that the erroneous action of the superior court dismissing the appeal can be reached only on certiorari, and cannot be corrected by mandamus. As held in the case of Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 P. 978, mandamus will lie to compel a superior court to proceed with the hearing of a justice's court appeal, when properly taken and the superior court has erroneously dismissed the same upon the ground that it had not acquired jurisdiction thereof.

Upon the grounds and for the reason stated, it is ordered that the peremptory writ issue herein as prayed.

KNIGHT, Justice.

We concur: TYLER, P. J.; CASHIN, J.

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Docket No: Civ. 9859.

Decided: August 27, 1935

Court: District Court of Appeal, First District, Division 1, California.

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