Carlson v. Superior Court

McKee, J. The writ of review in this case was granted to determine whether the Superior Court of [627]Alameda County pursued its jurisdiction in a case before it on appeal from the judgment of a Justice's Court.

The case appealed was an action of claim and delivery brought by E. F. Herbert against C. F. Carlson, a constable, for the return of a buzz-planer, which the constable had seized on the 23d of February, 1886, as the property of A. M. Stoddard, to satisfy an attachment issued against Stoddard in favor of one Higgins.

In the action, the plaintiff recovered judgment for the return of the buzz-planer, or its value if a return could not be had, and costs.

From the judgment, Carlson appealed to the Superior Court on a question of law. The question was, whether the transfer, by which "the plaintiff claimed title to the attached property, was void against the attaching creditor upon the ground that it was not accompanied by an immediate delivery and followed by an actual change of possession of the buzz-planer. It was contended that the transfer was void upon that ground, and that the judgment appealed from was erroneous and reversible.

The Superior Court, however, held that the statement on appeal was insufficient to raise the question. Upon the hearing of the case it made the following order: " That the statement of the case did not contain sufficient evidence to enable the- court to decide whether the ground of appeal was well taken; and for the reason that the appeal should be on questions of law and fact, this court dismisses the appeal.”

But the law allowed an appeal to be taken on questions of law alone; the appeal taken upon that ground was therefore taken according to law. There was no question that the appeal was not properly taken, and the question whether it ought to have been taken on questions of law and fact was not a question within the appellate jurisdiction of the court. There was but one question before the court as the ground of appeal; and apon that the appellant was entitled, as a matter of right, [628]to be heard if the statement of the case contained the evidence upon which the question was raised and decided in the Justice’s Court.