text:
    [Crim. No. 4239.
    In Bank.
    November 24, 1939.]
    THE PEOPLE, Respondent, v. JACK PIERCE et al., Appellants.

      Morris Lavine for Appellants.
    Earl Warren, Attorney-General, Paul D. McCormick, Deputy Attorney-General, Buron Pitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Despondent.
   CURTIS, J.

Defendants were convicted in the Superior Court of the County of Los Angeles of the crime of violating subdivision 2 of section 337a of the Penal Code. Said subdivision of said section of the code, reads as follows: 11 Every person, who, whether for gain, hire, reward, or gratuitously, or otherwise, keeps or occupies, for any period of time whatsoever, any room, shed, tenement, tent, booth, building, float, vessel, place, stand or enclosure, of any kind or any part thereof with a book or books, paper or papers, apparatus, device or paraphernalia, for the purpose of recording or registering any bet or bets, or any purported bet or bets, or wager or wagers, or any purported wager or wagers, or of selling pools, or purported pools, upon the result or purported result, of any trial, or purported trial, or contest, or purported contest, of skill, speed or power of endurance of man or beast, or between men, beasts, or mechanical apparatus, or upon the result, or purported result, of any lot, chance, casualty, unknown or contingent event whatsoever, is punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.”

The information which was filed by the district attorney of Los Angeles County, charging defendants with said violation, was in the following language: “The said Jack Pierce, Charles Sikora, and Margaret Johnson are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of violation of subdivision 2 of Section 337a, Penal Code of California, a felony, committed as follows: That the said Jack Pierce, Charles Sikora, and Margaret Johnson on or about the 15th day of July, 1938, at and in the County of Los Angeles, State of California, did wilfully, unlawfully and feloniously for gain, hire, reward, gratuitously and otherwise, keep and occupy a room, shed, tenement, tent, booth, building, float, vessel, place, stand and enclosure, and any part thereof, with a book and books, paper and papers, apparatus, device and paraphernalia, for the purpose of recording and registering a bet and bets, and purported bets and bets, wager and wagers, and purported wager and wagers, and of selling pools and purported pools, upon the result and purported result, or trial and purported trial, and contest and purported contest, of skill, speed and power of endurance between beasts, to-wit, horses.

“Contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the State of California.”

Defendants demurred to said information on the grounds, among others, that (1) the information failed to state a public offense, and (2) the information set forth more than one offense in the same count and therefore did not substantially conform to the requirements of sections 950, 951, 952 and 954 of the Penal Code. The defendants also filed a motion to set aside the information. The demurrer was overruled and the motion to set aside the information was denied. The case was heard by the trial court, a jury trial having been waived. Judgments of conviction were entered, and from said judgments, this appeal by defendants, Charles Sikora and Margaret Johnson, has been taken.

The evidence was clear and convincing that the defendants were guilty of a violation of said subdivision of said section, and no claim, therefore, is made that the evidence is insufficient to support the judgment. Appellants concentrate their attack upon said judgment solely upon the ground that the information was so fatally defective as to be insufficient to support the judgment of conviction. They confine their attack upon the information to two major lines of argument.

Appellants first argue that section 337a of the Penal Code and the provisions of the Horse Racing Act (Stats. 1933, p. 1127; Stats. 1933, p. 2046, as amended by Stats. 1935, p. 1586 and p. 1943, and Stats. 1937, p. 67 and p. 2292), constitute one law and must be read together. With this as a premise, appellants contend that, although prior to the enactment of the Horse Racing Act, the information herein challenged would have constituted the statement of a public offense, subsequent to the enactment of the Horse Racing Act, the information, as it did not specify with particularity the place where the alleged offense took place, and did not show on its face that it was not a place within a legal race track enclosure, failed to state a public offense. The California Horse Racing Act renders permissible and legal wagering on horse races by the pari-mutuel method by certain persons licensed by the California Horse Racing Board, at certain locations designated by the California Horse Racing Board, at certain designated times. Such wagering constitutes an exception to the provisions of section 337a of the Penal Code which declares wagering in general illegal. (People v. Torrey, 16 Cal. App. (2d) 470, 472 [60 Pac. (2d) 900].) By a long line of authorities in California, it has been repeatedly held that it is not necessary that a complaint, information or indictment shall specifically negative the various exceptions contained in the act describing the offense. (In re Lord, 199 Cal. 773 [250 Pac. 714]; People v. H. Jevne Co., 179 Cal. 621 [178 Pac. 517] ; Matter of Application of Lieritz, 166 Cal. 298 [135 Pac. 1129] ; Ex parte Hornef, 154 Cal. 355 [97 Pac. 891] ; People v. Torrey, 16 Cal. App. (2d) 470 [60 Pac. (2d) 900] ; People v. Bill, 140 Cal. App. 389 [35 Pac. (2d) 645] ; People v. Kinsley, 118 Cal. App. 593 [5 Pac. (2d) 938].) If said act, which formed the basis of the charge against defendants, in fact took place within a legal race track enclosure, by the parimutuel method, and by persons licensed by the California Horse Racing Board, or came within any other possible exception specified in said Horse Racing Act, that was a matter of defense to be proved by the defendants. (In re Lord, supra; People v. H. Jevne Co., supra; People v. Bill, supra; People v. Moronati, 70 Cal. App. 17 [232 Pac. 991] ; People v. Kinsley, supra.) It follows that said information stated sufficient facts to constitute a public offense and that appellants' contention to the contrary is wholly untenable.

The second ground advanced by the appellants as a reason for a reversal of the judgments is that subdivision 2 of section 337a of the Penal Code specifies at least eleven different offenses, that is to say, as many offenses as there are places mentioned in said subdivision, and the information by charging a violation of said subdivision of said section in the exact language of the statute, thereby charged more than one offense without separating the various offenses into separate counts as required by section 954 of the Penal Code. Section 954 of the Penal Code provides that, “An indictment, information, or complaint may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts. ...” One of the grounds of demurrer specified by section 1004 of the Penal Code is “that more than one offense is charged, except as provided in Section 954”. If it be true, therefore, that said subdivision of said section sets forth more than one offense, the information was defective in form, and the demurrer thereto on that ground should have been sustained. However, we are satisfied from an analysis of said subdivision that it sets forth only the single offense of conducting a betting establishment. The gravamen of the offense charged in said subdivision of said code section is the keeping and occupying of any place, whether structure or enclosure, for the purpose of illegal wagering. The type of place occupied is wholly and utterly immaterial to the offense charged as it makes no practical difference whether the place kept was a booth or a building, a tent or a tenement. It is obvious that the legislature in enacting said subdivision of the code section, instead of using a single word which would define all possible structures and enclosures, merely enumerated various general types of ordinary structures and enclosures, intending thereby to specify any and all possible places. Parenthetically speaking, we are satisfied that the keeping and occupying of any place or edifice, even if not specifically designated in said subdivision of said section, as for instance, a cabin, cottage, house, or yard, would be illegal and a violation of subdivision 2 of section 337a of the Penal Code. In other words, a description of the place kept and occupied is not an essential element of the offense.

Since 1927, it has been permissible under the authority of section 952 of the Penal Code to charge the offense in the language of the statute. Said code section specifically provides that: “In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. ...”

There can be no doubt that the rules of pleading with reference to criminal charges have been liberalized by the amendments of 1927 and 1929 relating to pleading in criminal cases. In People v. Beesly, 119 Cal. App. 82 [6 Pac. (2d) 114, 970], the court said: “The sufficiency of an indictment or information is not to be tested by the rules of the common law nor by the rules which existed prior to the amendments of 1927 and 1929 of our statutes relating to pleading in criminal cases. The true rule can be determined only by a consideration of all of the statutes affecting the subject as they exist since those amendments. The purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. At common law, where this information came solely from the indictment, much particularity was required. ... As a part of the accusatory procedure the law now provides that in every case the accused is entitled to a copy of the testimony given before the grand jury or the committing magistrate as the ease may be (secs. 870, 925, Pen. Code) and he is to-day better informed as to the case he must meet than was an accused under the detailed form of pleading required at common law. By section 959 of the Penal Code as amended in 1927 (Stats. 1927, p. 1041) we have the statutory provision that an information is sufficient if it can be understood therefrom that it is entitled in a court having authority to receive it, that the defendant is named, or, if his name is not known and that fact is pleaded, he may be charged by a fictitious name, that the offense is one of which the court has jurisdiction and that the offense was committed prior to the filing of the information. The former requirements of subdivisions 6 and 7 of section 959 that the act or omission charged must be clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended and to enable the court to pronounce judgment upon conviction, were repealed by the 1927 amendment and are no longer a part of that section. In so far as section 950 of the Penal Code seems to conflict with the rule laid down by section 959 as amended, the latter section .must control in view of the evident intention of the legislature to remove the former requirements of subdivisions 6 and 7 by their repeal. Section 952, which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended, declares that it shall be sufficient if it be ‘in any words sufficient to give the accused notice of the offense of which he is accused. ’ There, in a nutshell, is stated the principle of our present simplified form of pleading of a criminal offense—the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded. ’ ’

In view of our conclusion that subdivision 2 of section 337a of the Penal Code states but a single offense, there is no doubt that the district attorney was entitled under the authority of section 952 of the Penal Code to charge the defendants with a violation of said subdivision in the exact words of the statute, and there is no fatal defect in the form of the information as claimed by appellants.

Moreover, as pointed out in People v. Beesly, supra, appellants were required, by the provisions of section 870 of the Penal Code, to be furnished with a copy of the testimony given before the committing magistrate, and were, therefore, well informed as to the exact address of the place alleged to have been “kept and occupied”, and other circumstances surrounding the alleged offense. This being so, no possible claim can be made that any “substantial right of the defendants upon the merits” was prejudiced “by reason of any defect or imperfection in matter of form” of the information filed. In view of the definite provisions of section 960 of the Penal Code, in the absence of any possible prejudice, the information cannot be held to be defective. Said code section expressly provides that: “No indictment, information, or complaint is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.”

While holding the information sufficient and free from any legal defect sufficient to justify a reversal of the judgments, we are not to be understood as commending it as a model of pleading to be followed in the future in prosecutions instituted under said subdivision of said section, or under similar statutes.

The judgments are affirmed.

Houser, J., Shenk, J., Edmonds, J., Knight, J., pro tem., Spence, J., pro tem., and Pullen J., pro tem., concurred.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [S. F. No. 16266.
    In Bank.
    November 27, 1939.]
    EDWARD NEBELUNG, Jr., et al., Respondents, v. A. G. NORMAN et al., Defendants; LAHER SPRING & TIRE CORPORATION (a Corporation), Appellants.

      Frank Y. Campbell, Walter E. Rankin and Robert E. Hayes for Appellant.
    Bohnett, Hill, Cottrell & Boccardo and James F. Boccardo for Respondents.
   THE COURT.

After further consideration of this cause, we find ourselves in accord with the opinion of the District Court of Appeal as prepared by Mr. Justice Spence of the First District, Division Two, and we hereby adopt the same as the opinion of this court. It is as follows:

“The three plaintiffs brought this action seeking to recover damages for personal injuries sustained by them in an automobile accident. The cause was tried by the court sitting without a jury and a judgment was entered in favor of plaintiffs and against defendant, Laher Spring & Tire Corporation. By said judgment, plaintiffs Nebelung and Mucia were awarded the sum of $500 each, while plaintiff Yirnig was awarded the sum of $7,500. Said defendant’s motion for new trial was not ruled upon within the time prescribed and was therefore denied by operation of law. Said defendant appeals from the judgment.
‘ ‘ The defendant Laher. Spring & Tire Corporation, hereinafter referred to as the defendant, was in the business of buying used automobile tires, removing the old tread and replacing it with neAV, and selling said tires as ‘retreads’ or ‘remolds’. In 1936, they sold some retreads to a dealer named Gilbert, who, in turn, sold one of said retreads to plaintiff Nebelung. Shortly thereafter said plaintiff placed said retread on the right rear wheel of his automobile and, after traveling about 60 miles thereon, said tire disintegrated AA'hile the car. was being driven with the three plaintiffs riding therein. The new tread became completely detached from the easing or carcass of the tire, causing the car to SAverve out of control and to run off the highway with the resulting injuries to plaintiffs.
“It is conceded by defendant that defendant manufactured the tire involved and that there is substantial evidence to show that said tire came out of the mold with a defect known as a ‘mold-pinch’ or ‘buckle’. This caused an indentation on the inner side of the tire for about one-third of its circumference, which indentation was filled by defendant with rubber cement. While defendant lays some stress upon the fact that said tire was sold to Gilbert as a ‘second’ rather than as a ‘first’, it appears from the evidence of defendant’s own witnesses that the designation ‘second’ merely denotes Avith the trade some minor irregularity such as an irregularity of the knobs of the tread. One of defendant’s witnesses gave the following answers to the questions propounded: ‘Q. And the only difference between a first and a second is the looks of the tread I A. Yes. Q. The real qualities are the same, the wearing quality? A. Yes, they test along the same as the others. Q. Your firsts and seconds as far as the tread sticking to the carcass is concerned should be the same? A. Yes. Q. And you wouldn’t expect the tread on a second to come off any sooner than you would of first? A. Absolutely not.’ We may therefore treat the fact that the tire was sold as a second as wholly immaterial in this discussion.
“The casing and tread were introduced in evidence as well as photographs of both. Experts were called by both parties to give their opinions with respect thereto. Said eAddence was ample to show that defendant Avas chargeable with negligence in several respects in the manufacture of the retread tire in question. We need only point to the evidence showing that defendant had failed to remove the breaker strips from the tire before applying the new tread and had failed to take proper precautions to avoid the mold-pinch in applying the new tread. It appears that the failure of defendant in the foregoing respects prevented proper adhesion between the new tread and the casing and that experiments had shown that such defects invariably cause a new tread to loosen and to separate from the casing when the tire is put in service. We do not understand that defendant’s experts seriously questioned the existence of said defects or the fact that it is extremely dangerous to use a retread tire containing such defects. It was conceded by one of defendant’s experts that a tire with a mold-pinch could not be as good a tire as one without a mold-pinch and that he would not want one of his customers using a tire with a mold-pinch without knowing it. Another of defendant’s experts admitted that he ‘never saw a tread come off like that’; that there was something unusual about it and that (referring to the casing and retread in evidence) ‘it is the derndest looking mess I have ever seen in my life for ordinary wear’. When asked if there was not something wrong with the workmanship, he merely said, ‘Well, it wasn’t done intentionally, I’m sure of that.’ Some of defendant’s experts gave their opinions that the tire had been used in an underinflated condition, but the evidence on that subject, other than said opinions, was to the contrary.
“It was plaintiffs’ claim upon the trial that an automobile tire is an article which, if negligently manufactured, becomes imminently dangerous to life and limb in the use for which a tire is intended; that the defendant was guilty of negligence in retreading the tire in question and selling it for such use; and that as a direct and proximate result of such negligence, and without negligence on the part of plaintiffs or any of them, the tire in question disintegrated when put to such use thereby overturning the automobile in which they were riding and causing their injuries. There was ample evidence to sustain plaintiff's claims and the trial court made findings in accordance therewith.
“ Defendant makes the claim that some of the findings are not sustained by the .evidence, but we are of the opinion that all of the material findings are sustained. Defendant claims that the findings on the issue of proximate cause were based on speculation and conjecture and not upon any fair inference. This claim cannot be sustained. While experts were not in accord as to the immediate cause of the disintegration of the defective tire, this would appear to be immaterial. Plaintiffs presented ample evidence to show that defendant was negligent in manufacturing the defective tire and placing it on the market and the only fair inference to be drawn from said evidence is that defendant’s negligence was the proximate cause of the accident. In this connection, defendant claims that ‘the wrong of Gilbert and the high speed at which the car was traveling intervened assumed negligence’ on the part of defendant The ‘wrong of Gilbert’ consisted in buying the tire from defendant as a second and in selling it to plaintiff Nebelung as a first, but under the testimony of defendant’s own witnesses, a second was as safe for use as a first. The ‘high speed’ at which the car was traveling was approximately sixty miles per hour. This brings us to the further claim of defendant that driving at such speed constituted negligence on the part of plaintiffs and that the findings negativing contributory negligence were contrary to the evidence. This claim appears equally untenable as it cannot be said that the evidence showed that plaintiffs were guilty of contributory negligence as a matter of law. The automobile was being driven along a surfaced highway which was eighteen feet wide with four foot shoulders. The accident happened in open, desert country at a time when no other traffic was in the vicinity. In fact, it was fifteen minutes or more after the accident happened before any other vehicle arrived upon the scene. The' question of whether plaintiffs were guilty of negligence by reason of the speed of the ear was one for the trier of the facts and the trial court’s findings may not be set aside under the circumstances. With respect to the question of speed, it is a matter of common knowledge that automobiles are operated at times at a speed of approximately sixty miles per hour. Such speed is not unlawful under all circumstances and manufacturers of automobiles and automobile tires must reasonably anticipate that automobiles will be driven at times at such speed. We therefore conclude that defendant may not take shelter behind either the alleged ‘wrong of Gilbert’ or the ‘high speed’ at which the cár was being driven.
“Defendant further contends that certain findings are in irreconcilable conflict. We find no conflict in any of the material findings. The claim that the finding ‘that each plaintiff was free from negligence which contributed to the happening of the accident’ is in irreconcilable conflict with the finding ‘that it is not true that plaintiffs, or any of them, were guilty of contributory negligence as alleged’ is hyper-technical. The remaining alleged conflicts arise out of the situation presented by the pleadings and proof. Plaintiffs pleaded in their complaint that Gilbert was an agent of the defendant and that defendants made certain express warranties to plaintiff Nebelung with respect to the tire. They also pleaded negligence. The evidence developed that Gilbert was not an agent of defendant and that defendant had made-no express warranty to either Gilbert or plaintiff Nebelung concerning the tire. The trial court found that defendant had sold the tire ‘without any express warranty’. It further found that defendant ‘represented that the tire was in all respects safe for use in the manner for which it was manufactured and sold’ and ‘warranted and held out said tire to be free from defects and capable of withstanding use for which it was designed . . . ’. We find no irreconcilable conflict in said last-mentioned findings, but furthermore, the issues upon which said findings were based have now become immaterial issues. When plaintiffs ascertained that Gilbert was not an agent of defendant, they predicated their claim solely upon the alleged negligence of defendant and the judgment based upon such negligence finds support in the material findings without resort to the findings relating to any warranty, either express or implied. Defendant further lays stress on a finding which referred to a paragraph of the complaint and found the allegations thereof to be true. Said paragraph of the complaint used the word ‘defendants’ and charged that defendants did certain acts. In other findings, the trial court found that defendant Gilbert was not the agent of the defendant company. We believe, however, that it is entirely clear that the reference to the paragraph of the complaint wherein the word ‘defendants’ was employed was an inadvertence in so far as the adoption of the plural was concerned and that the trial court intended to refer only to the defendant company in said finding. We therefore believe that said findings may be reconciled and obviously should be reconciled as above indicated.
“ Before proceeding further we should state that we are of the opinion that the nature of the article here sold brings the cause within the recognized exceptions to the general rules which ordinarily shield the manufacturer from liability to persons as to whom there exists no contractual privity with the manufacturer. The general subject is discussed at length in Kalash v. Los Angeles Ladder Co., 1 Cal. (2d) 229 [34 Pac. (2d) 481], and such discussion need not be repeated here. It is sufficient to state that the trend of judicial decisions is to extend the exceptions beyond articles which are inherently dangerous and to include all articles which are reasonably certain to place life and limb in peril if negligently manufactured. Several examples of such articles, including automobiles, are referred to in the cited case and we believe that an automobile tire is such an article. We may further state that we do not believe the case of Stultz v. Benson Lumber Co., 6 Cal. (2d) 688 [59 Pac. (2d) 100], to be controlling as that case involved the manufacture and sale of lumber in which the defects were apparent.
“ Defendant also contends that ‘the judgment should be reversed at least in so far as it affects appellant’s liability to plaintiff Virnig because the trial court did not grant the appellant tire company’s motion for new trial’. O'ur examination of the record leads us to the conclusion that this contention is likewise without merit. Defendant’s motion was based upon alleged newly discovered evidence relating to the extent of the injuries suffered by plaintiff Virnig. It was accompanied by affidavits and motion pictures showing activities engaged in by said plaintiff after the trial.
“The testimony on the trial showed that said plaintiff, a man 26 years of age, has suffered a fracture of the second and third lumbar vertebrae resulting in curvature of the spine and muscle spasm; that he stood and walked in an unnatural position; that the condition would be permanent but would be helped by a brace; that with proper bracing, the muscles should strengthen within a few months and the pain would then be negligible ‘ except if he was exerting himself strenuously under heavy lifting’. While the doctors testified that the condition would be permanent, the testimony did not indicate that said plaintiff would be permanently prevented from engaging in all work and physical activity. On the contrary, it indicated that proper treatment would restore said plaintiff within a few months to a condition which would permit many normal activities, but not that of strenuous, heavy lifting. In short, the testimony showed a serious and permanent injury to said plaintiff but did not show a total and permanent disability. The award of $7,500 indicates that this was the view taken by the trial court.
“The accident occurred in October, 1936, the trial was had in June, 1.937, and the judgment was entered in October, 1937. It appears that said plaintiff has been examined prior to the trial by a doctor selected by defendant but that said doctor was not called at the trial. The activities stressed in defendant’s affidavits were recreational activities and work attempted by said plaintiff several months after the trial. It is conceded that the counteraffidavits ‘deny everything’ except that said plaintiff engaged in these activities and as á result he ‘experienced pain and discomfort in his back’.
“Taking into consideration the testimony given at the trial, the amount of the verdict and the showing made on the motion for new trial, we cannot say that the trial court erred in failing to grant said motion. When a new trial is asked upon the ground of newly discovered evidence, ‘the moving party must make a strong case’ (Smith v. Schwartz, 14 Cal. App. (2d) 160, 166 [57 Pac. (2d) 1386]), and this is particularly true when the alleged newly discovered evidence relates to facts occurring after the conclusion of the trial. The only California case, involving comparable facts, which has been called to our attention is Lawrence v. Pickwick Stages, N. D., 68 Cal. App. 494 [229 Pac. 885], It was there held that the motion for new trial had been properly denied. Upon the showing made here, we cannot say that the trial court abused its discretion in failing to grant said motion and in permitting the statutory time to expire.
“The last contention of defendant is that the trial court committed prejudicial error in denying in part its motion to strike said plaintiff’s counteraffidavits submitted in opposition to the motion for new trial. Said motion was granted in part and while said affidavits may have contained other hearsay statements which were not stricken, we cannot say that the ruling of the trial court constituted prejudicial error. ’ ’

Appellant’s motion to show moving pictures of activities of respondent, Virnig, subsequent to the trial, is denied.

Respondents’ motion to produce additional evidence in this case is hereby denied.

The judgment is affirmed.

Houser, J., dissented.


author: KNIGHT, J., pro tem.

text:
    [L. A. No. 17263.
    In Bank.
    November 28, 1939.]
    EDNA I. WILLIAMS, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Delvy T. Walton and B. R. Ware for Petitioner.

      J. H. O’Connor, County Counsel, and Douglas De Coster, Assistant County Counsel, for Respondent Superior Court.
   KNIGHT, J., pro tem.

An order was made by the judge of department 34 of the Superior Court of Los Angeles County citing Samuel Rappaport, one of the official stenographic reporters of the superior court of that county, to appear before said department on March 6, 1939, then and there to show cause why he should not be adjudged guilty of contempt for failing to comply with a previous order made by the judge of said department on January 4, 1939, directing said reporter to proceed immediately with the preparation of a reporter’s transcript in accordance with the written agreement theretofore made by him with the petitioner herein, Edna I. Williams, under the authority of section 953b of the Code of Civil Procedure. But pending the hearing of the contempt matter and on February 28, 1939, the judge of another department of said superior court, number 1,2, made an order which, among other things, purported to declare void for want of jurisdiction the order made by the judge of department 34 upon which the citation for contempt was based. Thereupon petitioner instituted this proceeding in certiorari in the District Court of Appeal of the Second District, for the purpose of having reviewed and annulled the order so made on February 28, 1939, by the judge of department 12. In response to the writ that was issued there was filed in said District Court of Appeal a demurrer to the petition for the writ and a certified copy of the proceedings had in both departments of said superior court pertaining to the making of the two orders above mentioned; and following a hearing the District Court of Appeal rendered its decision annulling the order so made by the judge of department 12. Thereafter on respondents’ application the cause was transferred to this court for hearing and determination.

The proceedings leading up to the making of the order under review, as they are shown by the record, and out of which the jurisdictional questions arise, are these: Petitioner took an appeal pursuant to the alternative method provided by section 95‘3a of the Code of Civil Procedure from an adverse judgment entered after trial on the merits in an action brought by her in the Superior Court of Los Angeles County. The action was tried in department 12 and consumed 59 court days. Three stenographic reporters officiated, one of whom was Kappaport, and his services covered all but seven of the 59 days. Section 953b of the Code of Civil Procedure provides that at the time an appellant files a request for the preparation of a transcript on appeal as required by the preceding section he shall file also an undertaking in an amount to be fixed by the clerk of the court to insure the payment of the costs of the transcript, or he “may arrange personally with the stenographic reporter for his compensation”. Petitioner made such an arrangement with each of said reporters and thereupon they joined in filing a waiver of the giving of the undertaking provided for in said section 953b. Two of the reporters, Cree and Hanna, carried out the arrangements made with them. In due time they prepared and delivered those portions of the transcript for which they were accountable, and petitioner paid them approximately $363 in full for their services. The arrangement made with Kappaport was confirmed by a written agreement dated April 19, 1938, which he himself prepared. It was signed by him and petitioner, and sets forth specifically the terms under which he agreed to prepare and deliver, and was to be paid for said transcript. On April 29, 1938, and again on June 4, 1938, he prepared written modifications of the agreement which likewise were signed by both parties; and each modification contained a concluding clause to the effect that except as therein stated the original agreement remained in full force and effect. By the terms of said agreement Kappaport agreed to furnish petitioner with the original and one copy of the reporter’s transcript “upon a contingent basis”, the substance of which was that petitioner would pay for the transcript at the statutory rate if she was successful in her appeal or recovered from the defendant either by judgment or compromise, but in any event, that she would reimburse Kappaport from time to time as the work progressed for the cost of the supplies required to prepare the record. Admittedly petitioner complied with her part of the agreement. During the eight months following the making thereof she paid Kappaport approximately $51,0 of which amount $310 had been used to defray the expenses of the copying of the exhibits and for the purchase of supplies; but during said eight months’ period he had transcribed less than seven of the fifty odd days of the court proceedings he had reported, so that at the end of that time there remained in his possession $120 for which he had rendered no service. Petitioner made repeated demands upon him to complete the transcript, but his excuse for the delay was that he was engaged in other reportorial duties; meanwhile the time to file the transcript had been extended by stipulation and court order, the last extension granted being on October 7, 1938, which extended the time to February 28, 1939. In November, 1938, petitioner became apprehensive that the transcript would not be completed within the allotted time; whereupon by way of application for an order to show cause supported by affidavit she brought the matter to the attention of the presiding judge of said superior court. By virtue of the provisions of section 67a of the Code of Civil Procedure, the presiding judge of the Superior Court of Los Angeles County is authorized to “distribute the business of the court among the judges thereof, and prescribe the order of business and perform such other duties as the judges of the said court may by rule provide ’ ’; and section 4 of rule 15 of the rules of said court provides that all orders to show cause shall unless otherwise ordered by the presiding judge be heard in the order to show cause department. Acting under the authority thus conferred upon him the presiding judge after first having referred the matter for investigation to a committee of judges of said court known as the “reporter’s committee”, directed that the application for the order to show cause be presented to the judge of the order to show cause department; and this was done. Department 34 was the order to show cause department; and on December 23, 1938, the judge thereof issued an order directing Rappaport to show cause therein on January 4, 1939, why he should not be compelled to proceed with the preparation of the record in accordance with said agreement; also why he should not be suspended from his duties as an official reporter of the court until the record was completed. The reporter was present at the hearing on the date set, the agreement between the parties was produced and received in evidence, and in connection therewith it was shown that he still retained $120 of the total amount paid for which he had furnished no part of the transcript. Rappaport made no counter showing, nor did he object to the matter being heard before that department; whereupon an order was made directing him to proceed immediately with the preparation of the transcript in accordance with the written agreement theretofore made by him. On February 24, 1939, the judge of said department heard and denied an application made by Rappaport to have said order vacated; and on February 27, 1939, the order was made by said judge directing Rappaport to appear therein on March 6, 1939, and show cause why he should not be adjudged guilty of contempt for failure to comply with its previous order. But on that same day, February 27, 1939, Rappaport applied to and obtained from the judge of department 12 an order shortening time to present a motion therein on the following day at 2 o’clock. The purpose of the motion was, as stated in the notice thereof, to obtain an order extending the time to file the transcript; but there was served therewith a copy of a petition addressed to the court and a letter written to petitioner by counsel for Rappaport, wherein it was stated that Rappaport had been advised that the agreement theretofore made by him for the preparation of the ■ transcript, being on a contingent basis, was contrary to public policy and therefore void; that nevertheless he was willing to proceed with the preparation of the transcript provided petitioner entered into a new agreement with him to pay for the transcript as delivered at the rate of 22% cents a folio. Rappaport’s motion was heard in department 12 at the time set, and at the conclusion of the hearing the judge of said department made the order here under review. It covers some 25 pages of the typewritten record, and analyzed shows the following: first, it declares void for want of jurisdiction the order made on January 4, 1939, by the judge of department 34, directing Rappaport to proceed immediately with the preparation of the transcript in accordance with the agreement theretofore made by him; secondly, it decrees that said agreement is void as being in its nature contrary to public policy; third, it extended the time to file the transcript to March 31, 1939 ; and fourth, it provided that if before the expiration of the time granted, petitioner entered into the new arrangement with the reporter on the terms proposed by him in said letter, or one otherwise satisfactory to him, which would be free from any contingent features, and if within the time granted petitioner gave “some assurance to the court of willingness to pay for a transcript” at the statutory rate, the reporter would be directed to proceed with the preparation of the transcript and further extensions of time would be granted to complete and file the same.

We are of the opinion that in making the foregoing order the judge of department 32 exceeded his jurisdiction. The state Constitution (art. VI, sec. 6) provides for but one superior court in each county, and that for each of said courts at least one judge shall be elected; it further provides that there may be as many sessions of said court at the same time as there are judges elected, appointed or assigned thereto, and that the judgments, orders and proceedings of any one session of the superior court held by any one or more of the judges thereof shall be equally effectual as though all the judges of said court presided at such session. Accordingly, it has been held that jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof; and that whether sitting separately or together, the judges hold but one and the same court. (Graziani v. Denny, 174 Cal. 176 [162 Pac. 397].) It follows, therefore, that where a proceeding has been duly assigned for hearing and determination to one department of the superior court by the presiding judge of said court in conformity with the rules thereof, and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned. (People v. Wong Bin, 139 Cal. 60 [72 Pac. 505].) In other words, while one department is exercising the jurisdiction vested by the Constitution in the superior court of that county, the other departments thereof are as distinct therefrom as other superior courts. (Cottrell v. Cottrell, 83 Cal. 457 [23 Pac. 531].) If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion. (Giffen v. Christ’s Church, 48 Cal. App. 151 [191 Pac. 718].)

Here, as will be noted, at the time the judge of department 12 made the order under review, the proceeding which had been duly assigned to department 34 for hearing and determination had not been finally disposed of therein. The contempt proceeding invoked for the enforcement of the court’s previous order was still pending, and during the pendency thereof the judge of department 12 made the order in question, the obvious purport of which was to nullify the proceedings which were then taking place in department 34. This the judge of department 12 was without jurisdiction to do. As said in People v. Wong Bin, supra, the judge presiding in one department has the power to make and enforce all orders necessary for the disposition of the proceeding that has been assigned to his department, and no judge sitting in any other department can interfere with him in the exercise of such power.

The recitals embodied in the order under review indicate that the judge of department 12 proceeded upon the theory that the proceedings which were being carried on in department 34 were “void on the face of the record”. But the reasons set forth in the order do not warrant such conclusion. One of the principal ones given is that the proceeding involving the controversy over the preparation of the reporter’s transcript properly belonged in department 12 wherein the cause had been tried on the merits. As above pointed out, however, the provisions of said section 67a and the rule of court to which reference has been made confer upon the presiding judge of the superior court full power of assignment. And in any event, it is well settled that if one department of a court exercises authority in a matter which might properly be heard in another, the action constitutes at most an irregularity and does not affect the jurisdiction. (In re Johnson, 101 Cal. App. 110 [281 Pac. 435] ; Graziani v. Denny, supra; Carter v. Lothian, 133 Cal. 451 [65 Pac. 962].)

The second main reason given is that the orders made by the judge of department 34 were founded on an unlawful agreement. In this respect the order under review reads: “For the reasons indicated, the court finds, adjudicates and decrees that the said agreement between said Samuel Rappaport and the plaintiff is contrary to public policy, is therefore unlawful, and void and that neither party to it can have or claim any rights, or enforce any remedies, thereunder. ’ ’ Manifestly, however, neither in the kind of a proceeding which was then being heard before department 12, nor under the circumstances there present, did the court have jurisdiction of the parties or the subject-matter to hear and adjudicate the question of the validity of said agreement, nor to define the legal rights of the parties thereunder. Such adjudication may be made only through the medium of an action brought for that purpose after the reporter delivers the transcript. (Gjurich v. Fieg, 160 Cal. 331 [116 Pac. 745]; Harris v. Burt, 47 Cal. App. 480 [190 Pac. 1058].) In the two cases just cited, undertakings were given by the appellants in conformity with the provisions of said section 953b; but the reporters refused to prepare and deliver the transcripts until their fees were actually paid; and in each ease it was held that inasmuch as the appealing party had complied with all of the requirements demanded by the statute to obtain the transcript he was entitled to the delivery thereof, and that any dispute as to the fees was a matter to be litigated afterwards in an action brought for. that purpose. In so holding, the language used by the court in the former case was as follows : “To say that the law contemplates the payment of the demand of the stenographic reporter at the time when the transcript is presented to the clerk for filing is to deprive the appellant of any right to object to the fees charged, or by objecting force the appeal to await the final determination of this controversy between the stenographic reporter and the appellant. The law desires and urges a speedy determination of appeals and it is not to be supposed that it ever contemplated either such injustice to an appellant or the delaying of an appeal to settle such a minor separate controversy. The true, and we think the obvious construction of the statute is that the undertaking given to the clerk is the security until such time as the exact amount due to the reporter can be known, and that this cannot be known until the final approval of the transcript by the judge. Thereupon and thereafter the appellant becomes liable for the just fees of the stenographic reporter so determined, and upon his failure to pay them recourse may be had against him and the sureties on his undertaking filed with the clerk.” The situation in the present case is no different in principle. Here the appellant complied with all of the requirements of the statute to obtain the transcript. True, she did not give an undertaking to insure the payment of the cost of the transcript as was done in those cases, but as permitted by the express provisions of the statute she arranged personally with the reporter for his compensation, whereupon the reporter filed a waiver of the giving of an undertaking. It reads as follows: “The appellant in the matter above entitled having arranged personally with me for the payment of my compensation in connection with the preparation of the reporter’s transcript and all exhibits in the case preparatory to appeal and making up said record under section 953a of the Code of Civil Procedure, I hereby waive the necessity of filing an undertaking under the provisions of said Code of Civil Procedure, relying upon the arrangement of said appellant for such compensation.” Therefore, when the matter of the application for the order to compel the reporter to proceed with the preparation of the transcript came on for hearing before department 34, the sole question before the court was whether petitioner had complied with all necessary legal requirements to obtain the transcript. Admittedly she had; and accordingly the order was made directing the reporter to prepare and deliver the transcript. If after the delivery of the transcript a dispute should arise between the petitioner and the reporter as to the amount the reporter is legally entitled to receive, his recourse would be, as outlined in the Gjurich case, an action in the ordinary course of law to collect the same, which necessarily would involve a determination of the question of the validity of the agreement theretofore entered into between the parties. There is nothing in the terms of any of the orders made by the judge of department 34 which precludes the reporter from invoking such remedy, for nowhere therein does the judge of said department purport to adjudicate the question of the validity of said agreement. In fact neither at the hearing on January 4, 1939, nor at any prior time did the reporter, in any manner, question the validity of the agreement. Respondents claim that the issue of its validity was raised by Rappaport’s motion of February 24, 1939, to set aside the order of January 4, 1939; but the record before us does not show the grounds of that motion nor the reasons for its denial. It may be well assumed, therefore, that if issue was so raised, the order of denial was based upon the ground that the court was without jurisdiction in that kind of a proceeding to inquire into the merits thereof. The remaining jurisdictional matters referred to in the order under review are of less importance than those above discussed, and therefore do not require special notice.

One more point is presented. Respondents call attention to that part of the record showing that petitioner took an appeal from the order she seeks by this proceeding to annul, and authorities are cited to the effect that if an order is appealable, certiorari will not lie. It is apparent, however, that it is not appealable under section 963 of the .Code of Civil Procedure as a special order made after final judgment, because such an order to be appealable must affect the judgment in some manner or bear some relation to it, either by way of enforcing or staying its execution (Lake v. Harris, 198 Cal. 85 [243 Pac. 417]; Griess v. State Investment etc. Co., 93 Cal. 411 [28 Pac. 1041]; Kaltschmidt v. Weber, 136 Cal. 675 [69 Pac. 497]; Watson v. Pryor, 49 Cal. App. 554 [193 Pac. 797]; 2 Cal. Jur., p. 153); nor does it fall within the classification of any of the other orders specified in said section.

For the reasons and upon the grounds stated, the demurrer to the petition for the writ is overruled and the order made by the judge of department 12 on February 28, 1939, is annulled.

Shenk, J., Curtis, J., Houser, J., and Spence, J., pro tern., concurred.


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    [L. A. No. 17079.
    In Bank.
    November 30, 1939.]
    LUSANNAH C. SHEA et al., Appellants, v. J. B. LEONIS, Sr., et al., Respondents.

      Chapman & Chapman and Decoto & St. Sure for Appellants.
    Gibson, Dunn & Crutcher, S. M. Haskins, Frederic H. Sturdy, Ira C. Powers, Young & Kelly, Edward R. Young and Frank R. Johnston for Respondents.
   THE COURT.

A rehearing was ordered herein in order to give further consideration to the contentions of the defendants. A reexamination of the questions raised on the appeal has confirmed the conclusions reached in the former opinion. We therefore adopt as the opinion of this court on rehearing the opinion prepared by the late Justice Seawell and previously filed, as follows:

“This is an action to recover accrued rent in the sum of $16,833.33, with interest, and also taxes and assessments in the amount of $5,435, which the lessee agreed by the lease to pay. Plaintiffs appeal from the judgment entered for defendants upon counts one, two, four and five of the complaint after the sustaining of defendants’ general and special demurrers to said counts.
“Defendant J. B. Leonis, Inc., assignee of a ninety-nine year lease, transferred said lease to defendant Boyle Avenue Investment Company. The rent herein sued for accrued subsequent to this transfer. The court below held good count three of the complaint, which states a cause of action against Boyle Avenue Investment Company as last assignee of the lease. The court also held good count six as against J. B. Leonis, Inc. Said count alleged that by the terms of the lease an assignment thereof did not operate to release the assignor from liability on the lease if at the time of the assignment it was in default as to any terms of the lease. It averred that J. B. Leonis, Inc., was in default upon the covenants of the lease on December 21, 1931, when it assigned said lease to Boyle Avenue Investment Company.
“It appears from the counts involved on this appeal that defendants J. B. Leonis, Sr., and J. B. Leonis, Jr., own all stock of J. B. Leonis, Inc., which is described as a ‘ financially responsible company’. The stock of Boyle Avenue Investment Company stands in the names of J. B. Leonis, Jr., and Adelina P. Leonis, his wife. The theory of plaintiffs is that defendant Boyle Avenue Investment Company is but the alter ego of its stockholders, and that it was organized for the sole purpose of taking an assignment of the lease and is without other assets, with the result, plaintiffs contend, that the separate corporate identity of said company should be disregarded and its stockholders held for the rent herein sued for.
“It is alleged in count 1 that the stock of Boyle Avenue Investment Company, in the names of J. B. Leonis, Jr., and Adelina P. Leonis, is held for J. B. Leonis, Sr., and J. B. Leonis, Jr., against whom judgment is prayed for in this count. In count 2 it is alleged that the stock is held for J. B. Leonis, Inc.; in count 4, that J. B. Leonis, Jr., and Adelina P. Leonis are themselves the beneficial owners; and in count 5, that it is held for J. B. Leonis, Sr., J. B. Leonis, Jr., and J. B. Leonis, Inc. Each count prays for judgment against the parties, respectively, for whom the stock of Boyle Avenue Investment Company is alleged to be held.
“ We entertain no doubt that if Boyle Avenue Investment Company was organized as above outlined its separate corporate existence should be disregarded and its liability as last assignee of the lease held to be the liability of the persons who are the beneficial owners of all its corporate stock. Defendants point to eases which hold that if the lessor does not restrict assignment to solvent transferees, an assignment may lawfully be made to an insolvent. (Johnson v. Sherman, 15 Cal. 287 [76 Am: Dec. 481]; Lindley v. Sale, 140 Cal. App. 662, 668 [36 Pac. (2d) 130].) These cases are not controlling in the circumstances set out in the complaint. The stockholders of the corporation assignee, Boyle Avenue Investment Company, while enjoying the benefits of the lease, cannot equitably claim that they may escape its burdens through the device of taking the assignment of lease in the name of a corporation which is without other assets and has been organized by them for the purpose of taking such an assignment.
“Corporate separate existence will be disregarded where to recognize it would be to sanction a fraud or promote injustice. (Minifie v. Rowley, 187 Cal. 481 [202 Pac. 673]; Erkenbrecher v. Grant, 187 Cal. 7 [200 Pac. 641].) For example, a debtor may not evade payment of his debts by forming a corporation which does not assume the debt and thereafter transferring all his assets to it. (Higgins v. California Petroleum & Asphalt Co., 122 Cal. 373 [55 Pac. 155]; Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348 [181 Pac. 780] ; Grotheer v. Meyer Rosenberg, Inc., 11 Cal. App. (2d) 268 [53 Pac. (2d) 996] ; Sunset Farms, Inc., v. Superior Court, 9 Cal. App. (2d) 389 [50 Pac. (2d) 106].) The equitable principle underlying these decisions is equally applicable where, as in the instant case, the device adopted is not a transfer of assets, but an attempt to avoid liability for benefits enjoyed by means of taking the obligation in the name of a specially organized corporation which has no other assets.
“As to the count which avers that the stock of the newly organized Boyle Avenue Investment Company is held for J. B. Leonis, Inc., the corporation assignor, and that the new company was organized for the purpose of terminating liability of the assignor, it may be said in addition that the assignment is, in effect, as plaintiffs allege, no assignment at all and that the new corporation is but the old one under another name. An assignee cannot escape liability by an assignment which is merely colorable. (1 Tiffany, Real Property [2d ed.] 184; 16 R. C. L. 866.)
“ An action against defendants for rent accruing under the lease within four years of action brought is upon the written contract of lease (Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348 [181 Pac. 780]), and hence would not be barred by the statute of limitations.
“We conclude that the several counts state a cause of action against the parties which they, respectively, seek to hold, with the exception that count five states no cause of action against Adelina F. Leonis, but only as to defendants J. B. Leonis, Sr., and J. B. Leonis, Jr., and J. B. Leonis, Inc. Count four, based on the theory that J. B. Leonis, Jr. and Adelina F. Leonis are beneficial owners of the stock of Boyle Avenue Investment Company, properly includes Adelina F. Leonis as a party against whom recovery is sought, but it is not averred in count five that she has any beneficial interest in said stock, with the result that in said count five liability against her on the theory of disregard of the corporate identity is not made out.
1 ‘ The defendants also filed special demurrers urging uncertainty and ambiguity in several particulars. We are of the view that the complaint is not subject to special demurrer in any of the particulars relied on.”

The judgment for defendants entered upon demurrer is reversed except as to the judgment for Adelina F. Leonis on the fifth count of the complaint, which is affirmed, appellants to recover costs.


text:
    [Sac. No. 5337.
    In Bank.
    November 30, 1939.]
    SIDNEY E. ESTRIN, Individually, etc., Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY et al., Respondents.

      Busick & Busick for Petitioner.
    Robert H. Schwab and Richard S. Goldman for Respondents.
   THE COURT.

A hearing was granted by this court in the above-entitled action after the District Court of Appeal had dismissed proceedings following the issuance of a writ of certiorari, by which the petitioner Estrin sought to have reviewed proceedings theretofore had in the Superior Court on a trial de novo, after an appeal had been taken to that court from a justice’s court. On the return day the respondents filed a demurrer to the petition, together with a motion to dismiss the certiorari proceedings for the reason that the petitioner had failed to file a certified transcript of the proceedings sought to be reviewed, as required by a direction of the District Court of Appeal, pursuant to the provisions of sections 1070 and 1071, Code of Civil Procedure. The dismissal was granted on the grounds advanced in the motion. No ruling was made on the demurrer to the said petition, and the hearing herein was granted in order to give further consideration to the contention of the petitioner that, inasmuch as the filing of the demurrer had the effect of admitting the facts set forth in his petition, he was not required to provide the appellate court with a transcript of the proceedings had in the trial court.

That contention must be upheld. In the ease entitled Bryant v. Superior Court, 16 Cal. App. (2d) 556, 566 [61 Pac. (2d) 483], it was said: “The effect of the demurrer to the petition . . . [was] to adopt as the return to the writ the facts alleged therein (Burlingame v. Justice’s Court, 1 Cal. (2d) 71 [33 Pac. (2d) 669].) . . . ”. And in the case last cited, in which the appeal was from a judgment of the Superior Court in a certiorari proceeding, wherein the latter court had annulled an order of the justice’s court, it was said: ‘ ‘ The matter was submitted to the court on a demurrer to the petition. The effect of the demurrer was to adopt as the return to the writ the facts alleged in the petition. (Stoner v. City Council of Los Angeles, 8 Cal. App. 607 [97 Pac. 692].) The facts set forth in the petition are therefore uncontroverted ...” To the same effect is the case entitled Holmes v. Justice’s Court, 19 Cal. App. (2d) 362, 364 [65 Pac. (2d) 820, 822], wherein the court said: “When the petitioner herein asked for a writ of review and pleaded all the proceedings had in the justice’s court, the demurrer to that petition made the petition the return upon which the review should have been heard. . . . The sole issue before the court was whether the justice’s court exceeded its jurisdiction in ordering the perpetual stay of execution, and that issue could be determined upon examination of the record of the Justice’s Court as pleaded in the petition and admitted by the return.” (See, also, Stewart v. Superior Court, 101 Cal. 594 [36 Pac. 100] ; 4 Cal. Jur., p. 1094.)

Passing to a consideration of the averments of the petition, —in the light of the effect of the demurrer,—from the facts set forth therein it appears that: On or about September 3, 1937, the plaintiff, Novelty Electric Sign Company, a corporation, filed an amended complaint in an action pending in the justice’s court, in which the petitioner herein was named as defendant. By the allegations of the complaint the plaintiff sign company stated a cause of action for the recovery of a judgment against the defendant in the sum of $556.20, based upon an agreement in writing made and entered into between the plaintiff and the defendant on or about the 15th day of September, 1936, by the terms of which agreement the plaintiff agreed to construct and sell to the defendant a Neon electric sign, and to install the same upon the premises operated by the defendant under the name of Estrin’s Style Shop. It was further alleged that the defendant agreed to pay to the plaintiff as consideration for the agreement the total sum of $556.20, within thirty-five days after completion and installation of the sign, but that no part of such sum had been paid. The complaint also contained a separate cause of action against the defendant for recovery of the sum of $125, which, it was alleged, represented the cost of work, labor and services furnished by the plaintiff to the defendant at the latter’s instance and request.

In his answer to the complaint the defendant admitted the execution of the said written agreement for the purchase by him of an electric sign, but alleged that the sign thereafter installed by the plaintiff did not comply with certain specifications with respect to quality, as set forth in the agreement, and, further, that it was not installed in accordance with the terms of the said agreement. After trial was had in the justice’s court on those issues, judgment was rendered in favor of the defendant. Thereupon the plaintiff sign company filed its appeal in the Superior Court, and a trial de novo was had therein, the court sitting without a jury. The Superior Court made findings in favor of the appellant sign company and rendered its judgment in accordance therewith. Thereafter the defendant made a motion for a new trial, which the court denied.

The findings recited that: “ . . . plaintiff agreed to construct and sell to defendant a Neon electric sign and to install said sign on the premises operated by defendant in Sacramento, California, and service the same for a period of one year after installation; that plaintiff did construct and install a Neon electric sign, . . . and said sign as finally installed, was accepted by defendant and used continuously by him since the date of installation”; that, as agreed upon with said defendant, and “for a period of one year after installation”, the plaintiff “serviced said sign and kept the same in operating condition during said period”; and that the “reasonable value of the construction, installation and servicing of the sign is the sum of $517.20”. The court also found that all the allegations in the answer of the defendant which were inconsistent with the foregoing findings were “untrue and unsupported by evidence”.

The principal contention of petitioner herein is that the Superior Court exceeded its jurisdiction in rendering a judgment based on a finding as to the “reasonable value of the construction, installation and servicing of the sign”, whereas the complaint set out a cause of action on an express contract. Petitioner asserts that at the trial he objected to the reception of evidence relating to an implied contract; that findings based thereon were wholly outside the issues presented by the pleadings and, therefore, that the making of such findings was in excess of the court’s jurisdiction. On the other hand, the respondents contend that the matters complained of by petitioner did not amount to the performance of acts in excess of the court’s jurisdiction, but that, at most, they merely constituted error on the part of the Superior Court in pursuance of its authority to act in the matter (Code Civ. Proc., see. 1074). If the latter contention is correct, the demurrer should be sustained and the judgment affirmed.

It is well settled that the writ of certiorari will not lie unless it can be said that the inferior tribunal has exceeded its jurisdiction. (Code Civ. Proc., sec. 1068.) As was said in the ease entitled Howe v. Superior Court, 96 Cal. App. 769, 772 [274 Pac. 992], “The writ of certiorari is an extraordinary remedy, equitable in its nature, the issuing of which rests in the sound discretion of the court.” It lies only when the final determination of an inferior court, tribunal, or board is in excess of its jurisdiction. “The language of the section [Code Civ. Proc., sec. 1068], limits it to eases where the tribunal ‘has exceeded’ its jurisdiction.” (Holabird v. Railroad Commission, 171 Cal. 691, 694 [154 Pac. 831]; Sayers v. Superior Court, 84 Cal. 642 [24 Pac. 296].)

To the same effect is the case entitled McLaughlin v. Industrial Acc. Com., 87 Cal. App. 469, 470 [262 Pac. 53], where the court said: “In order that relief by certiorari may be granted there must haAre been an excess of jurisdiction by a tribunal exercising judicial functions; and an excess of jurisdiction is to be distinguished from errors of either law or fact committed by a judicial tribunal within the limits of its jurisdiction (In the Matter of Hughes, 159 Cal. 360, 363 [113 Pac. 684]; Harry v. Superior Court, 162 Cal. 281 [122 Pac. 475, 128 Pac. 760]).” (See, also, authorities cited in Vol. 3, Cal. Jur. Ten-year Supp., p. 363.)

Likewise, in the case entitled Monreal v. Bush, 46 Cal. 79, it was said (syllabus) that, “Certiorari does not lie to review an erroneous judgment which the Court below had jurisdiction to render”, and it was there held that rendition of a judgment for a demand which was not due when the action was commenced was not an act in excess of jurisdiction, but was merely error in the exercise of jurisdiction. (Emphasis added.)

In the case of Karry v. Superior Court, 162 Cal. 281, 284-286 [122 Pac. 475, 128 Pac. 760], the distinction between error in the exercise of jurisdiction and a judgment rendered in excess of jurisdiction is discussed. In that ease the court said, “a court has jurisdiction to decide wrongly as well as correctly, and the only remedy of a party aggrieved by a merely erroneous decision is such as may be afforded by our statutory provisions relating to motions for a new trial and appeals. If no such remedy be given, the action of the trial court ivithin its jxirisdiction is conclusive. ... We have here no different case in principle from the one we would have if the action had been one on a promissory note for one hundred dollars, appealed to the superior court, and not only the ansiver and the uncontradicted evidence, but also the findings showed that the note had been fully paid, and nevertheless the superior court had given judgment in favor of the plaintiff for the full amount of the note. Such a judgment would, of course, be erroneous, but there would have been no excess of jurisdiction, and the aggrieved party would have been without any remedy by way of certiorari. A judgment that fails to accord to a party his legal rights is, of course, always to be regretted. But there must be a point in every proceeding beyond which the law will not permit further controversy as to the merits of the ease. In actions of the character of the one under consideration, . . . the final appellate jurisdiction is in the superior court. Even if the judgment of that court on the merits was clearly erroneous in this case, a question we do not decide, it is final and conclusive, no excess of jurisdiction being made to appear.” (See, also, to the same effect, Borchard v. Board of Supervisors, 144 Cal. 10, 14 [77 Pac. 708].)

However, in the instant case it is contended by the respondents that the findings were not in fact outside the issues raised by the pleadings. Petitioner’s contention that plaintiff’s recovery, if any, must have been based only on the allegations of his complaint is not tenable. In determining the issues raised, the pleadings of both parties must be considered. (14 Cal. Jur., p. 973.) In view of the admissions and the other matters set up by defendant in his answer in the instant case, the issues before the court necessarily would not be limited to the allegations of the complaint. Thus in the ease entitled Rogers v. Riverside Land etc. Co., 132 Cal. 9, 11 [64 Pac. 95], the court said: “Appellant’s counsel is mistaken in supposing that issues in a cause can be raised only by allegations in the complaint controverted by the answer. Very frequently the most important issues tried in a cause arise outside of the allegations in the complaint. In addition to the denials contained in the answer, it may contain a statement of new matter constituting a defense, and the statement of such new matter in the answer, on the trial, is deemed controverted by the opposite party; and an issue arises from such new matter in the answer thus controverted by implication of law. (Code Civ. Proc., secs. 437, 462, 588, 590.)”

Also, in 14 Cal. Jur., pp. 986, 987, the rule is stated that “ ... in contested cases the relief granted is not limited to that specifically prayed for, as is the case where judgment goes by default; any relief authorized by the facts alleged and proved or admitted may be awarded. The defendant, by answering, may enlarge the scope of the relief to any extent consistent with the pleadings and embraced within the issues. Hence relief, though not specifically prayed for, may be granted with respect to matters as to which an issue is raised by the denials and averments of the answer”. Again, at page 990, it is said, “Since there is but one form of civil action under the code the court may grant any relief embraced within the issues. The fact that a party has misconceived the relief to which he is entitled does not alone justify a total denial of relief, but a plaintiff may recover if his complaint states any cause of action entitling him to any relief either at law or in equity. ” Likewise, it is stated in Union Oil Co. v. Mercantile Refining Co., 8 Cal. App. 768, 771 [97 Pac. 919], “Under our liberal system of pleading and practice plaintiff is not [to be] denied any relief, if justified by his pleading and evidence, simply because he fails to prove that he is entitled to the full measure that he claims.”

To the same effect is the case entitled Howard v. D. W. Hobson Co., 38 Cal. App. 445, 449, 452 [176 Pac. 715], where it is said: “The rule in this state with respect to the construction of a pleading, for the purpose of determining its effect, is that its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., sec. 452.) It is not to be assumed from that rule of construction, however, that by construction there may be inserted in a pleading vital pretermitted averments, or averments which are neither directly set forth therein nor reasonably within the fair import of the language of those which are set forth. But if the averments themselves may, without a strained construction, or without doing violence to language, be held clearly to imply or state a fact essential to the statement of a cause of action or to the support of the theory upon which reliance must be had to make out a ease or a defense, then the rule of the code should be invoked and the pleading construed with a view to the promotion of substantial justice between the parties to the action.”

An analysis of the pleadings in the instant case shows that an express contract for the construction and installation of an electric Neon sign was entered into between the parties; that an electric Neon sign was so installed by plaintiff on the premises of defendant, where it remained; and that defendant had paid nothing to plaintiff as consideration therefor. It was also alleged in the complaint that plaintiff had “fully performed all of the conditions of said agreement on its part to be performed”. That allegation was denied in the answer, and it was affirmatively alleged therein that the sign that was erected was neither constructed nor installed in accordance with the terms of the express agreement; and that defendant had refused to accept the sign and had requested its removal. Therefore, it appears that the answer sufficiently enlarged the issue tendered by the complaint to have permitted the reception of evidence relating to the question whether the sign so constructed and installed on defendant’s premises was in accordance with the specifications of the agreement and thus entitled plaintiff to the full contract price; also, evidence thereby was admissible with respect to the amount of the reasonable value of said sign if it was found not to have been so constructed and installed, as alleged in the answer, but nevertheless had been accepted and retained by defendant. The trial court found that “said sign as finally installed was accepted by defendant and used continuously by him, since the date of installation” (emphasis added) and that, “as agreed upon with said defendant”, plaintiff “serviced said sign and kept the same in operating condition” for the period of one year after its installation. In the absence of a transcript of the evidence, we may assume that sufficient evidence was adduced to support those findings. Nor do we understand that they are challenged as being without evidentiary support. Considering the allegations of the pleadings, if there was evidence to show that defendant retained the sign, notwithstanding his asserted objections thereto, it may not fairly be urged that the trial court went outside the issues in imposing liability on him for the reasonable value thereof. A party is entitled to “any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved, irrespective of the theory upon which they may be alleged. (Haight v. Stewart, 36 Cal. App. 514 [172 Pac. 769]; Corey v. Struve, 170 Cal. 170, 172 [149 Pac. 48].)” (Lacey v. McConnell, 9 Cal. App. (2d) 6, 9 [48 Pac. (2d) 161].) To the same effect, see, also, McLean v. Ladewig, 2 Cal. App. (2d) 21, 25 [37 Pac. (2d) 502] ; McAllister v. Union Indemnity Co., 2 Cal. (2d) 457, 460 [42 Pac. (2d) 305].

Even if we were to assume, for the purpose of illustration only, that the pleadings interposed by the parties in the instant case were not broad enough in their scope to justify the relief granted by the Superior Court, the error committed would have been merely an error in the exercise of jurisdiction. The court had jurisdiction of the parties and of the subject-matter. It had the authority to hear and determine, and to render a judgment on the issues presented. Manifestly, the rendition of the judgment was not an act in excess of the jurisdiction of the court.

The demurrer is sustained, and the judgment is affirmed.