gno.law

Deidesheimer v. Brown

California Supreme Court · · 1857-07-01 · Published · 8 Cal. 339

DEIDESHEIMER v. BROWN

Area
civil
Panel
Lawrence F. Terry, Albert G. Burnett

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion — Burnettterry

Burnett, J., delivered'the opinion of the Court—Terry, C. J., concurring.

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. Do*340fendant 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. Prac. Act, § 541; White well v. Barbier and others, January, 1857.

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.

Cited by