
    CHARLES DUCHENEAU, Respondent, v. HIRAM HOUSE, Appellant.
    Practice. — Time in Which to Answer in Justice’s Court. — A defendant in an action in a justice’s court who is served with summons in the precinct in which the action is brought has five days after service of the summons in which to answer, exclusive of the day of such service, under section 718, Laws of Utah, of 1884, and if he appears within the five days and tenders his answer to the court to be filed, a judgment taken against him by default prior to the expiration of the five days and to the putting in of such answer, is erroneous and an appeal may be taken therefrom.
    Certiorari. — When it Lies. — A writ of certiorari cannot properly issue from the district court to review the proceedings of a justice’s court in an action therein determined, where the judgment rendered in such justice’s court, although erroneous, was within the general jurisdiction of the justice and when an appeal would lie therefrom.
    Appeal from a judgment of the district court of the first district. Sections 718 and 723 of the laws of Utah of 1884 are as follows:
    “Sec. 718. The time specified in the summons for the appearance of the defendant must be as follows:
    “1. If an order of arrest is endorsed upon the summons, forthwith.
    “2. In all other cases, the summons must contain a direction that the defendant must appear and answer the complaint within five days, if the summons is served in the city or precinct in which the action is brought; within ten days, if served out of the precinct or city, but in the county in which the action is brought; and within twenty days if served elsewhere.
    “Sec. 723. When all the parties served with process shall have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendant [defendants] who have appeared, thereof. The parties are entitled to one hour in which to appear, after the time fixed in the summons, but are not bound to remain longer than tbat time unless botb parties bave appeared, and tb e justice being present, is engaged in tbe trial o£ another cause.”
    Tbe other facts appear in tbe opinion of tbe court.
    
      Mr. C. 8. Varían, for tbe appellant.
    Tbe office of tbe writ of certiorari is to correct past error. It is tried by tbe record and no questions of fact de-hors the record can be raised or determined: Hamilton v. Spiers, 2 Utah, 229.
    It is only allowed when there is no appeal: Civil Pr. Act. sec. 950, et seq.
    In tbe case at bar there was an appeal: Pr. Act. sec. 854; 8. I. M. Association v. Supreme Court, 65 Cal., 500.
    It makes no difference tbat tbe time for appeal has elapsed: Faut v. Mason, 47 Cal., 8; Bennett v. Wallace, 43 Cal., 25; Mülicker v. Hubes, 21 Cal., 167.
    Tbe only matter complained of is tbe failure of tbe justice to give defendant five full days of twenty-four hours each, in which to answer. All other allegations bave no place in a petition for certiorarij they could not be answered nor the facts determined, and therefore cannot be considered.
    Tbe Practice Act requires a defendant to appear and answer toithin five days: Pr. Act, sec. 718.
    It seems tbe hour of apxeearance must be fixed in tbe summons: Pr. Act, sec. 723.
    Time is computed by excluding tbe first and including tbe last day: Pr. Act, sec. 8.
    Taking all these provisions together, a harmonious construction may be reached. Any hour on tbe fifth day may be designated and yet tbe defendant bave tbe five days given by statnte. Any portion of tbe fifth day is a full legal day, as the law takes no note of fractions of a day: Duffy v. Oc/den, 64 Pa. St., 240; Turnpike Road v. Haywood, 10 Wend., 422.
    This construction has been ruled: Misch v. Mayhew, 51 Cal., 573.
    
      Bee code sections involved in tbis case: Cal. Civil Procedure, sec. 12, sec. 1116.
    Even if tbis construction is wrong, tbe case is not one for certiorari. At tbe most tbe action of tbe justice was an error or irregularity which did not affect tbe jurisdiction: Freeman on Judgments, sec. 126; Ballinger v. Tarbell, 16 Iowa, 492; Kilsmiller v. Kifcher, 24 Iowa, 163.
    
      Mr. James N. Kimball and Mr. A, B. Heywood, for the respondent.
   Boreman, J.:

Tbe respondent applied to tbe district court for a writ of certiorari to compel tbe appellant, a justice of tbe peace, to certify to that court for review tbe case of Tar-pey and Phillips against said Charles Ducheneau, then in the justice’s court. Summons bad been served on Duch-eneau, tbe defendant in that action, on tbe thirtieth day of March, 1885, at nine p. m., in tbe precinct where tbe justice held court. Tbe answer of Ducheneau was not filed until tbe fourth day of April, 1885, although be bad sent it to tbe justice on tbe third day of April. Judgment was •rendered against tbe defendant, Ducheneau, on tbe morning of tbe fourth of April. Tbe answer of tbe defendant, Ducheneau, was received by tbe justice, and receipt thereof acknowledged on tbe same fourth day of April. Despondent claimed that as defendant in that action be bad all of tbe fourth day of April in which to file answer, and that tbe justice exceeded bis jurisdiction in giving judgment before tbe five days time for answering bad expired. The district court granted tbe writ of certiorari, and upon tbe bearing adjudged and decreed that tbe judgment in tbe justice court be reversed and annulled. From tbe decision and judgment of tbe district court, tbe appellant (House) has brought tbis case to tbis court.

In our civil procedure act it is provided that if the defendant in an action before a justice of tbe peace be served with summons in tbe precinct in which the' action is brought, be must appear and answer tbe complaint “within five days:” Laws of 1884, p. 288, sec. 718.

It is further provided in said act as follows: “Sec. 8. The time in which any act provided by law is to be done is computed by excluding the first day and including the last day, unless the last day is a holiday, and then it is also excluded.”

In counting the five days we are^ not to count the first day, that is, the thirtieth of March, but are to count the fifth day, that is, the fourth of April. Beginning then with the thirty-first of March as one day, and counting the first four days of April, we have the five days within which the defendant in that action was authorized to answer.

It is sometimes said that when an act is authorized to be done after a fixed number of days’ notice, the doing of the act on the last of such days is a compliance with the- statute. Such is the ruling in Misch v. Mayhew, 51 Cal., 514, in which the court held that where a “three days’ notice” was required of an act proposed to be done, the doing of it on the third day was a compliance with the statute. But if, in such a case, the party had been authorized to do an act “within” three days, we are inclined to think the court would not have excluded it if done at any time on the third day.

It is claimed by appellant that the sections we have quoted, together with section 723 of'the same act, require the justice to fix in the summons-aif' 'hour for the appearance of the defendant in any case before him, and that as the justice fixed 10 a. m., of the fifth day for the defendant in said action before him to appear, that the justice, after waiting one hour after that time, was justified in entering default and judgment. The words “time fixed in the summons,” as found in said section 723, presuppose some antecedent provision requiring a time to be fixed. We find such provision in section 718 of the same act. But in this latter section we find that, instead of the words “time fixed,” it speaks of the “time specified” in the summons. And according to said section 718, the “time specified” in the summons is five days, if the party be served with summons in the precinct in which the action is brought; and ten days if served out of the precinct, yet in the county, and twenty days if served elsewhere. We find nothing in said section or elsewhere in regard to the fixing of an hour for the appearance of the defendant. If the justice should assume to fix an hour, lie would have to fix an hour on each of three different days, to suit the five days, the ten days, and the twenty days specified in the summons; but we see no reason for fixing an hour whatever, further than is fixed by the five, ten, or twenty days’ limit.

The statute, in section 723, provides for the justice to fix a day for trial, but that is after appearance, and possibly the words “time fixed in the summons,” as specified in section 723, should be the “time fixed in the notice,” as notice is specified prior thereto in said section. But section 757 requires the justice to wait one hour after the “time specified in the summons,” thus making it immaterial, so far as this case is concerned, whether the word should be “summons” or “notice.”

The appearance of the defendant on the fifth day was within time, and the justice had no authority to enter default or judgment until said five days had expired, and judgment entered before the expiration* of said five days was error, and the defendant was, as we think, entitled to have his answer filed as of that day, and to be heard thereon.

Notwithstanding the foregoing views in the case at bar, the appellant maintains that the allowance of the writ of certiorari was error, as respondent was entitled to an appeal from the judgment of the justice. The code of civil procedure (Laws of 1884, p. 322, sec. 951) provides for the issuance of the writ of certiorari when the tribunal, etc., “has exceeded the jurisdiction of such tribunal, etc., and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.” And section 854 of the same code allows “any party dissatisfied with a judgment rendered in a justice’s court” to appeal therefrom to the district court. In the case of Golding v. Jennings, 1 Utah, 135, the court says that where the court in which the case sought to be reviewed is pending, has no jurisdiction of the subject-matter, that a writ of certi-orari is proper, notwithstanding the statute gives the party the right to an appeal, for the appeal in such a case would not be an adequate remedy.

The casé at bar is an action for trespass and damages under three hundred dollars. Such an action is within the general jurisdiction of a justice’s court, and hence an appeal would be an adequate remedy. Whether the court, in Golding v. Jennings, was correct in saying that a writ of certiorari would be proper when the court below acted without its jurisdiction, and did not simply exceed it, it is not now necessary for us to decide; but where the justice is acting within his general jurisdiction as to the subject-matter, but exceeds his jurisdiction as to the party by rendering judgment before the time to answer has expired, and relief by way of appeal is open to the party, we think he is bound to resort to the appeal. We cannot see wherein it is not an adequate remedy. We think, therefore, that the justice ought to have allowed the answer of respondent to have been filed; but, it not having been doné, the respondent herein should have taken his appeal from the judgment of the justice to the district court. The judgment of the district court, therefore, is reversed and remanded, with directions to the district court to quash and dismiss the writ.

Zane, C. J., and Powers, J., concurred.  