Smith v. Superior Court
Before: McLaughlin
Synopsis
Appeal from Justice’s Judgment of Nonsuit—Question of Law and Fact—Reversal—New Trial in Justice’s Court.—An appeal from a judgment of a justice’s court granting a nonsuit, though taken on questions both of law and fact, presents a question of law only; and there having been no trial upon the merits in that court, the superior court, upon reversal, properly refused to grant a trial de novo therein and remanded the case for new trial in the justice’s court.
Id.—Statement of Case—Jurisdiction to Determine Nature of Appeal—Certiorari.—Where the appeal was heard upon a statement of the case, the superior court had jurisdiction to determine the nature of the appeal; and certiorari will not lie to review the conclusion reached.
Id.—Maxim—Order Granting “New Trial.”—The law respects form less than substance; and the fact that the order of the superior court used the words “new trial” in remanding the cause to the justice’s court can neither rob the order of its vitality nor the superior court of its jurisdiction.
McLAUGHLIN, J.
The petitioner was plaintiff in an action brought in the justice’s court. When said plaintiff had rested his case, the justice granted defendant’s motion to dismiss the action on the ground that plaintiff had failed to prove the cause of action stated in the complaint. Within ten days thereafter the petitioner prepared and filed a statement of the case. Amendments thereto were proposed by defendant, and in due time the statement was settled and allowed, and the record on appeal from the judgment
[530]
of dismissal was filed in the superior court. The notice of appeal recited that the appeal was taken on questions of both law and fact. When the case was called in the superior court petitioner’s motion to have the cause set for trial was denied, and thereafter an order was entered reversing the judgment of dismissal, and remanding the cause for a new trial in the justice’s court. This order recites that the appeal was on questions of law, that it was heard on a statement of the case, and argued and submitted to the court upon questions of law.
Petitioner contends that he was and is entitled to a trial
de novo
in the superior court, and hence that such court was without jurisdiction to make the order remanding the cause. It is argued that the appeal, under the notice given, must be treated as taken on questions of both law and fact, and that even if it be considered as taken on questions of both law and fact, or on questions of law alone, petitioner was entitled as a matter of absolute right to a trial in the appellate court. It is said that under sections 976 and 980 of the Code of Civil Procedure, a new trial in the appellate tribunal is inevitable, whether the appeal be taken on questions of both law and fact, or on questions of law alone. If this question was open, we might, perchance, be inclined to adopt the construction placed upon section 908 of the Code of Civil Procedure by counsel for petitioner. But it has been held repeatedly that if an appeal to a superior court is based on questions of law alone, the proper procedure is to remand the cause for trial in the justice’s court, and we are not at liberty to depart from a rule of practice so firmly established.
(Southern Pacific R. R. Co.
v.
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