Town of Hayward v. Pimental

Citations

• 107 Cal. 386
• 40 P. 545
• 1895 Cal. LEXIS 764

Syllabus

<p>Recorder’s Court—Action to Recover License—Allegation of Ordinance—Judgment—Quashing Execution.—In an action in a recorder’s court of a municipal corporation of the sixth class to recover a license tax imposed by a municipal ordinance, the failure of the complaint to set forth the provisions of the ordinance otherwise than by reference to its title and date of passage will not invalidate a judgment for the amount of the license. Such a judgment cannot be collaterally attacked on a motion to quash an execution issued thereon, and is valid and operative until appealed from or reversed.</p> <p>Id.—Execution Erroneously Recalled—New Execution—Mandamus.— If the recorder erroneously directs an execution which had been issued under such judgment to be returned unsatisfied, and his order is complied with, he may be compelled by mandamus to issue another execution, his duty to do so being purely ministerial.</p> <p>Id.—Hearing Application for Mandamus—Judgment on Pleading.— Where the answer to an affidavit for a writ of mandate presents no issues of fact, and raises only issues of law, the court may, under section 1094 of the Code of Civil Procedure, hear and determine the matter on the pleadings. Such a hearing is a sufficient compliance with the requirements of section 1088 of such code, that “ the writ cannot he granted by default,” and that “the case must be heard by the court whether the adverse party appear or not.”</p> <p>Id.—Demurrer to Answer—Recitals in Judgment.—A recital in the order sustaining a demurrer to such an answer that the matter had been previously “ submitted to the court for consideration and decision,” and a recital in the judgment granting the writ that the “ cause came on for hearing on the twenty-first day of May, 1894, to which day the same had been duly and regularly continued, on the demurrer of said relator to the answer of said respondent,” sufficiently shows that there was a hearing and a submission, not merely of the demurrer, but of the