Opinion
Rehearing Denied Oct. 8, 1934.
Hearing Granted by Supreme Court Nov. 8, 1934.
Appeal from Superior Court, City and County of Los Angeles; Thomas C. Gould, Judge.
Action by Thomas S. Norton, Jr., against Nathan F. Baranov and another, copartners, doing business under the firm name of Baranov & Bennett, who filed a cross-complaint, joining other persons as cross-defendants. Judgment for plaintiff, and from an order denying defendants’ motion to set aside the judgment and dismiss the action, they appeal.
Reversed.
COUNSEL
Alvin B. Baranov, of San Diego, for appellants.
Frank Mergenthaler, of Los Angeles, for respondent.
OPINION
SCOTT, Justice pro tem.
Plaintiff sued defendants, residents of the city of San Diego, for $400 for accounting services. Defendants answered and filed a cross-complaint joining other persons as cross-defendants. At the time of trial defendants’ request for continuance was denied, the case was tried and judgment was rendered for plaintiff. More than sixty days after entry of judgment defendants filed their "notice of motion to set aside judgment and for dismissal," on the ground that the trial court was without jurisdiction. The motion was heard and denied, and within ten days thereafter defendants appealed from the order denying said motion.
From the judgment roll it appears that the trial court was without jurisdiction by reason of the fact that defendants were residents of San Diego city and the jurisdiction was in the justice’s court of San Diego township. Code Civ. Proc. § 832, and section 76 (then in effect); Const. art. 6, § § 5 and 11a. The fact that both parties proceeded without objection in the superior court of Los Angeles county until defendants made the motion now in question did not confer jurisdiction on that court. As was said in Shipp v. Superior Court, 209 Cal. 671, 289 P. 825, 827: "* * * either the superior court has or has not jurisdiction and either the justice’s court has or has not jurisdiction. If the justice’s court has jurisdiction, that jurisdiction is exclusive. (Citing cases.) Consent of the parties, of course, will not alone confer jurisdiction of a cause belonging exclusively in another court." Since the subject-matter of this action was within the exclusive jurisdiction of the justice’s court of San Diego township, the trial court was without jurisdiction. Van Horn v. Justice’s Court, 216 Cal. 235, pages 241 and 242, 13 P.2d 704.
The invalidity of the judgment being apparent from the judgment roll, it may be vacated on motion made at any time. Morgan v. Clapp, 207 Cal. 221, 277 P. 490; Capital Bond, etc., Co. v. Hood, 218 Cal. 729, 24 P.2d 765. Since the trial court had power to set aside its void judgment upon the motion herein made, an appeal from its order denying such motion is proper if taken within the time provided by law, as was done in this case.
Respondent refers us to the case of Lawson v. Guild, 215 Cal. 378, at page 381, 10 P.2d 459, 460, wherein it was stated: "An appeal will not lie from an order refusing to vacate a final judgment if the grounds upon which the party sought to have the same vacated existed before the entry of judgment and were available on appeal from the judgment," and contends that the rule quoted effectually disposes of this appeal. It is obvious, however, that the same principle which allows a trial court to vacate its void judgment long after the time for appeal has expired, and the judgment would in the usual case have become final, requires us to consider the appeal from the order of the trial court denying such motion; and where it appears, as it does in this case, that such denial was erroneous, it is the duty of this court to order its reversal and remand the cause so that the lower court may enter the proper order vacating the judgment.
Order appealed from reversed.
We concur: CRAIG, Acting P. J.; DESMOND, J.