History Co. v. Light , 97 Cal. 56 ( 1892 )

De Haven, J.

The petitioner commenced this proceeding in the superior court for the purpose of annulling an order made by a justice of the peace in San Joaquin County, setting aside the service of a summons made in a certain action pending in the court of said justice of the peace, wherein the petitioner was plaintiff, and one Quackenbush defendant. Upon the return made to the writ of certiorari, the superior court dismissed the proceeding, and the petitioner appeals.

The justice of the peace had jurisdiction to entertain the motion of the defendant therein to set aside the service of the summons made upon him in a county other than that in which the action was pending. Section 848 of the Code of Civil Procedure, so far as applicable to this case, is as follows: —

“ Sec.' 848. The summons cannot be served out of the county of the justice before whom the action is brought, except .... when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case summons may be served in the county where he resides.”

It is clear that a defendant has the right to move the court to set aside the service of a summons attempted to be made in violation of the provisions of this section, and the motion is properly made, as it was in this case, upon affidavits showing the grounds of the motion. The fact that the unverified complaint filed in the action alleged that the contract sued upon was to be performed by the defendant therein in the county in which such action was brought did not foreclose all inquiry as to the fact, and deprive the justice of the peace of jurisdiction to pass upon the truth of that allegation upon the motion to set aside the service of the summons. The burden of proving the improper service is, of course, upon the defendant in such a motion, and he should be required to present a clear case. But the justice having jurisdiction to hear and decide the motion, his decision thereon cannot be reversed or annulled upon certiorari, no matter whether such decision was right or wrong, upon the evidence before him. (Buckley v. Superior Court, 96 Cal. 119; Sherer v. Superior Court, 96 Cal. 653.) The action of the superior court in dismissing the proceeding was correct, and must be affirmed.

Judgment affirmed.

Garoutte, J., and McFarland, J., concurred.

Hearing in Bank denied.