Kraker v. Superior Court

Certiorari—Appeal from Justice’s Court—Questions of Law and Fact—Dismissal Without Trial—Want of Prosecution—Judgment for Respondent—Excess of Jurisdiction.—Where a judgment rendered in the justice’s court against the defendant was appealed by the defendant to the superior court on questions of law and fact, the dismissal of the appeal for want of prosecution by the appellant and the rendition of the judgment appealed from in favor of the respondent without trial, was in excess of the jurisdiction of the superior court, and its action will be annulled on certiorari.

Id.—Eight of Trial De Novo—Duty of Superior Court.—When an appeal from a judgment of the justice’s court is taken and duly perfected by a defendant upon questions both of law and fact, the case is removed to the superior court for a trial cíe novo, and the superior court must try the case as if there had been no trial in the justice’s court.

Id.—Plaintiff the Actor in Superior Court.—In such case, the appeal being duly perfected, the plaintiff is the actor in the superior court, as he was in the justice’s court, and it is his duty to bring the case on for trial, and no duty in that respect devolves upon the defendant, though he is the appealing party.

Id.—Remedy fob Dismissal of Appeal in Justice’s Court—Excess of Jurisdiction—Appropriate Remedy.—Where an appeal upon questions of law and fact has been duly perfected, the superior court exceeds its jurisdiction in dismissing the appeal, and its action may be controlled by the appropriate remedy. If there is no other judgment, mandamus may lie to compel the trial of the case.

Id.—Judgment for Plaintiff Without Trial—Writ of Review—Annulment of Order and Judgment.—Where, in addition to the dismissal, judgment was rendered for plaintiff without trial, the appropriate remedy is to vacate and annul both the order of dismissal and the judgment by writ of review, when the case will stand for trial de novo in the superior court.