Trobock v. Caro

McKee, J.: This is an appeal from judgment of affirmance of a judgment of the late Municipal Court of Appeals of the City and County of San Francisco, rendered upon an appeal purporting to-have been taken by the defendant in the action, to the County Court of the City and County of San Francisco from the judgment of the Justices’ Court of said city and county.

It is contended that the judgment of the affirmance is erroneous, because the Municipal Court of Appeals had not acquired jurisdiction of the case by appeal, and therefore its judgment is invalid and void, and should have been reversed.

The case was heard in the Court below upon the return made by the Municipal Court of Appeals to the certiorari issued in the case. The return consisted of the transcript of the record and proceedings in the action. Upon the return as made the Court below heard and determined the case— dismissed the writ of certiorari and affirmed the judgment of the Municipal Court of Appeals.

The return and the writ, with a copy of the judgment of the lower Court attached to them, constitute the judgment roll in the case.

By the roll it appears that judgment was rendered against defendant in the Justice’s. Court on the eleventh of July, 1879. From that judgment the defendant appealed to the County Court on questions of law and fact. The appeal was taken by filing a notice of appeal and an appeal bond on • July 16,1879. The bond was executed on July 15,1879, and the notice of appeal was dated July 11, 1879, and directed to the Justice of the Justice’s Court, in which the judgment had been rendered, and to the attorney of the plaintiff, but it does not appear to have been served upon, nor is there in the record any acknowledgment or waiver of service by the plaintiff in the action or his attorney.

The papers in the case were transmitted to the County Court, and the case appears to have been there pending when the Municipal Court of Appeals tried the case de novo, and rendered judgment for the defendant. That judgment was rendered on the fifteenth of October, 1879, but there was no order.made by the. County Court transferring the case to the [303]Municipal Court of Appeals, until November 17,1879. On that day the County Court, for the first time, made the necessary order of transfer, and ordered it to be “entered nunc pro tunc as of the date of taking this appeal and the perfecting thereof.” This order was filed in the Municipal Court of Appeals, November 18, 1879, more than a month after the rendition of judgment by that Court on the trial de novo of the case.