
    [S. F. No. 5194.
    In Bank.
    July 7, 1909.]
    G. B. OLCESE, Petitioner, v. JUSTICE'S COURT OF THE FIRST JUDICIAL TOWNSHIP, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, and C. H. HAYDEN, Justice of the Peace etc., Respondent.
    Certiorari—Discretion in Issuing—Right of Appeal.—Certiorari is not a writ of right, and the granting or refusing to issue it rests in the discretion of the court, and it will not be issued where the matter sought to be reviewed can be heard and determined on appeal.
    Id.—Right of Appeal to Court Other than One Applied to for Writ.—The provision of section 1068 of the Code of Civil Procedure, that a writ of review may be granted when an inferior tribunal, exercising judicial functions, has exceeded its jurisdiction and there is no appeal, is not limited to the case where no appeal lay to the court petitioned for certiorari, but where no appeal lay to a court of general common law jurisdiction, which could itself, in a proper case, issue the writ.
    Id.—Jurisdiction of Superior Court—Appeal from Justice’s Court on Questions of Law—Jurisdiction of Person of Defendant.— The superior court has the fullest common law and equity jurisdiction, and is vested by section 5 of article VI of the constitution, with power to issue the writ of certiorari, and has appellate jurisdiction, on an appeal on questions of law from a judgment of a justice’s court entered on the default of the defendant, to determine the question of law whether or not the justice’s court acquired jurisdiction over the person of the defendant.
    Id.—Affirmance of Judgment of Justice’s Court—Certiorari from Supreme Court to Bevusw Judgment of Justice’s Court.—If, on such an appeal, the superior court affirms the judgment of the justice’s court, the judgment of the superior court operates to estop the defendant from proceeding in the supreme court to review on certiorari the judgment of the justice’s court. His proper method of redress is an application for a writ of certiorari to review the judgment of the superior court, from which the law has provided no appeal. So long as the judgment of the superior court stands unassailed, that judgment formally decreeing the validity of the judgment of the justice’s court cannot be ignored nor in another proceeding swept aside.
    Id.—General Appearance—Waiver of Defect in Service of Summons.;—A general appearance by a defendant, in an action in a justice’s court, is a waiver of a defect in the service on him of the summons.
    Id.—Plea for Lack of Jurisdiction of Person—Waiver of Defect by Asking for Other Belief.—Pleas based upon lack of jurisdiction of the person are in their nature pleas in abatement, and find no especial favor in the law. Such a plea is purely dilatory, and a defendant who seeks to avail himself of it must stand upon his naked legal right, and seek nothing further from the court than the enforcement of that right. If he raises any other question, or asks for any relief which can be granted only upon the hypothesis that the court has jurisdiction of his person, his appearance is general, though termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons.
    Id.—Action in Justice’s Court—Service Outside of County—Waiver op Defect by Demurring to Jurisdiction.—Where the complaint in an action on contract in a justice’s court is in all respects sufficient to show jurisdiction in that court of the subject-matter of the action, but fails to allege that the contract was in writing, service of the summons upon the defendant, under section 848 of the Code of Civil Procedure as amended in 1907, may not be had outside of the county in which the action is brought. If, however, a defendant served outside of such county, specially appears to quash the service of the summons, and at the same time, by an appearance denominated special, demurs to the complaint on the ground that the court has no jurisdiction of his person or of the subject-matter of the action, he thereby waives the question of the jurisdiction of his person, and submits himself to the jurisdiction of the court.
    APPLICATION for a Writ of Certiorari to review a judgment of the Justice’s Court of the First Judicial Township, County of Contra Costa.
    The facts are stated in the opinion of the court.
    William M. Cannon, for Petitioner.
    C. H. Marks, for Respondent.
   HENSHAW, J.

An action upon contract was brought in the justice’s court for the first judicial township of the county of Contra Costa against petitioner Olcese. The complaint was in all respects sufficient to show jurisdiction in the justice’s court of the subject-matter of the action. (Code Civ. Proc., sec. 832, subd. 7.) It failed to allege, however, that the defendant’s contract was in writing, and while, under the provision of the code last above cited, jurisdiction of the subject-matter is in the justice’s court, whether the contract be oral or in writing, yet, by the provisions of section 848 of the Code of Civil Procedure, as amended in 1907, service upon the defendant may not be had outside of the county'in which the action is brought, unless the contract be in writing. Service in this case was had upon the defendant in the city and county of San Francisco. He appeared in the justice’s court by motion, supported by affidavit, to quash the service of the summons for the reason above indicated, and at the same time demurred, his demurrer reading as follows: “The defendant in the above-entitled action, specially appearing for said purpose, demurs to the complaint in said action on the ground that the court has no jurisdiction of the person of this defendant or of the subject-matter of said action. Wherefore said defendant prays to be hence dismissed with his costs herein incurred.” The justice’s court denied the motion and overruled the demurrer, and this petitioner declining to proceed further, judgment by default was entered against him. From "that judgment, in due time he prosecuted his appeal to the superior court of the county of Contra Costa upon questions of law. The superior court of Contra Costa affirmed the judgment of the justice’s court. Thereafter this petitioner sued out certiorari to review the judgment, not of the superior court, but of the justice’s court. The first question presented is whether or not petitioner has mistaken his remedy; that is to say, whether his right to certiorari, if certiorari should be issued at all, is not limited to a review of the judgment of the superior court; second, upon the merits whether or not, conceding that petitioner was improperly served in the city and county of San Francisco, his appearance by demurrer did not constitute a general appearance so as to waive the irregularity in the service of summons.

The constitution (art. VI, sec. 4) vested this court with power to issue writs of certiorari. At the time this constitutional provision was passed, it was well settled and well understood that certiorari was not a writ of right, that the granting or refusing to- issue it rested in the discretion of the court, and that by modern common-law usage and by the rules laid down by the decisions of this state under its earlier constitution, the writ would not be issued where the matter sought to be reviewed could be heard and determined upon appeal. “The remedy of defendant is by appeal and not by writ of review. The latter lies only when the former does not.” (People v. Shepard, 28 Cal. 115; Comstock v. Clemens, 19 Cal. 80; Clary v. Hoagland, 13 Cal. 173.) When the judges declared that certiorari would not issue when there was an appeal, and when, following this, section 1068 of the Code of Civil Procedure provided that a writ of review may be granted when an inferior tribunal, exercising judicial function, has exceeded the jurisdiction of such tribunal and there is no appeal, this language was not limited to the case where no appeal lay to the court petitioned for certiorari, but where no appeal lay to a court of general common-law jurisdiction, such a court as could itself, in a proper ease, issue certiorari. (Comstock v. Clemens, 19 Cal. 80.) That the superior court is such a court, with the fullest common law and equity jurisdiction, is not questioned, and moreover, it is a court which the constitution vests with power to issue this writ. (Art. VI, sec. 5.) By the same constitution is vested in the superior court appellate jurisdiction “in such cases arising in justices’ and other inferior courts in their respective counties as may be prescribed by law.” The law has provided for an appeal such as was taken in this case from the justice's court to the superior court, with full power and jurisdiction in the latter court to determine the question of law whether or not the justice’s court acquired jurisdiction over the person of the defendant. The complete controversy here presented for review was presented to the superior court, and by the judgment of that court of general jurisdiction was determined adversely to this petitioner’s contention. The question which thus arises then is, May petitioner ignore a judgment of a court of general jurisdiction given upon this matter, and here seek by certiorari to have the judgment of the justice’s court reviewed ? or will the judgment of the superior court estop him from so proceeding, leaving open to him, as his proper method of redress, an application for a writ of certiorari from the judgment of the superior court, from which judgment the law had provided no appeal? We think beyond doubt that the judgment of the superior court so operates as an estoppel. It is the judgment of a court of general jurisdiction, fully empowered to pass upon the law and the facts. Having done so, the matter becomes res judicata, with all the binding force and effect by way of estoppel which attaches to every such judgment. It is no argument against this to say that the effect is that the legislature deprives this court of its constitutional power to review under certiorari the judgment of a justice’s court by providing that an appeal may be taken from such judgment to the superior court. Certiorari to check excesses in jurisdiction was not employed where there was an appeal. The right of appeal relieved from the necessity of and took away the right to certiorari. That the judgment of the superior court is in all respects a judgment by a competent court and one of general jurisdiction, is not questioned. It may not be ignored in any succeeding effort to assail the judgment of the justice’s court. It raises an estoppel against any such effort until it itself shall be overthrown. This, since an appeal from it is denied, may be undertaken under certiorari. But so long as the judgment of the superior court stands unassailed, that judgment formally decreeing the validity of the judgment of the justice’s court, cannot be ignored nor in another proceeding swept aside. The appeal from the judgment of the justice’s court, heard and determined by the superior court, was in all respects the equivalent of a writ of error, and the application to this court for certiorari is but an attempt to obtain a second writ of error directed, not against the appellate judgment, but against the judgment of the justice’s court upon matters adjudicated by a court of general jurisdiction under the first appeal or writ of error. It is well settled that this cannot be done. Says the supreme court of Massachusetts (Hayes v. Collins, 114 Mass. 54), “if the judgment upon the former petition had passed upon the merits, it might well be held to be a conclusive adjudication that the petitioner was not entitled to have the original judgment reviewed, just as the affirmance of the judgment upon a writ of error is held to be a bar to a second writ of error for any cause which existed at the time of that judgment.” (State v. Water Commissioners, 30 N. J. L. 247; Illingworth v. Rich, 58 N. J. L. 507, [34 Atl. 757].)

Such are the general principles, and the recognized practice in' such a case as this has been to seek a review of the judgment of the superior court. (Sherer v. Superior Court, 94 Cal. 354, [29 Pac. 716]; Buckley v. Superior Court, 96 Cal. 119, [31 Pac. 8].) This court has never recognized the right of a petitioner to a writ of certiorari to review the judgment of a justice’s court after appeal taken and determined in the superior court. It has reviewed the judgment of a justice’s court only under such exceptional circumstances as those indicated in Elder v. Justice’s Court, 136 Cal. 364, [68 Pac. 1022], where petitioner’s power to appeal was lost by reason of the fact that he was never notified of the day set for trial, or the rendition of judgment against him.

But if consideration be paid the merits of this controversy, petitioner is not entitled to a judgment at our hands upon certiorari. For, notwithstanding the alleged defect in the service on him of the summons, if he made a general appearance in the justice’s court, he will be bound by that appearance as having waived the informality of his summons. Pleas based upon lack of jurisdiction of the person are in their nature pleas in abatement and find no especial favor in the law. They amount to no more than the declaration of the defendant that he has had actual notice, is actually in court in a proper action, but, for informality in the service of process, is not legally before the court. It is purely a dilatory plea, and when a defendant seeks to avail himself of it, he must, for very obvious reasons, stand upon his naked legal right and seek nothing further from the court than the enforcement of that right. He will not be heard to ask of the court anything further that an adjudication upon his plea, and if he does ask anything further, then, by logic of the.fact, he must necessarily have waived the irregularity of his summons before the court. Here is one reason for the well-settled rule that if a defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that objection. Another reason equally valid, is that if such defendant shall ask for any relief other than that addressed to his plea, he is seeking, to gain an unconscionable advantage over his adversary, whereby, if the determination of the court be in his favor he may avail himself of it, while, if it be against him, he may fall back upon his plea of lack of jurisdiction of the person. So it is well settled that if a defendant, under such circumstances, raises any other question, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general, though termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons. (In re Clark, 125 Cal. 388, [58 Pac. 22]; Security etc. v. Boston etc., 126 Cal. 418, [58 Pac. 941, 59 Pac. 296].) In the present case the defendant made his motion to quash the service of the summons. In this, his appearance was undoubtedly special, as he limited it solely to a request for this specific relief. But he also demurred to the jurisdiction of the court over his person and over the subject-matter of the action. In this case plainly a demurrer to the complaint for lack of jurisdiction over his person could not lie. If in any conceivable ease it could lie, such a demurrer also would be treated as a special appearance. But here he went further and demurred to the jurisdiction of the court over the subject-matter of the action, a request for relief which the court could not grant him, saving upon the theory that he was regularly before the court. It was relief, moreover; independent and apart from his plea to the jurisdiction of the person, and, if successful, would have worked a dismissal of the action upon an entirely distinct legal ground. That in so demurring he waived the question of the jurisdiction of his person and submitted himself to the jurisdiction of the court is abundantly settled. (Code Civ. Proc., sec. 1014; Zobel v. Zobel, 151 Cal. 98, [90 Pac. 191]; 2 Ency. of Plead. & Prac., p. 625; 3 Cyc., p. 505.)

For the foregoing reasons the writ is discharged.

Shaw, J., Angellotti, J., Sloss, J., Melvin, J., and Lorigan, J., concurred.

Beatty, C. J., dissented.  