Opinion
Appeal from the County Court of Placer County.
COUNSEL:
Tuttle & Myers, for Appellants.
Welsh & Hillyer, for Respondent.
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
Action before Justice's Court, to recover mining-claim; summons issued and served February 3, 1857, returnable February 14. Defendant moved to dismiss the case, because the summons was dated, issued, and served, more than ten days before its return. Motion overruled, and defendant answered. Judgment for defendant, and plaintiff appealed to the County Court. Defendant again moved to dismiss, and motion overruled. Trial upon the merits, and judgment for plaintiffs, and defendant appeals to this Court.
The motion of the defendant to dismiss should have been sustained. If the justice could make the summons returnable in eleven days from its date, then he could make it returnable in eleven months. The defendant has an interest in a speedy trial, as well as the plaintiff. The appearance of the defendant, for the purpose of making the proper motion, did not waive his rights; had he answered without any objection, then he could not afterwards have complained. (Pr. Act, Sec. 541; Whitwell v. Barbier , 7 Cal. 54.)
But we would not be understood as expressing any opinion as to whether such a judgment could be collaterally impeached or not. That question does not arise in this case. Here the defendant promptly appealed from the judgment itself.
The judgment of the County Court is reversed, and that Court will dismiss the plaintiff's case.