Maxson v. Superior Court

McFARLAND, J. Petition for writ of certiorari. One Roberts brought an action against the petitioners herein, Maxson and Harris, in the justice’s court; the petitioners, as defendants in said action, demurred to the complaint; the demurrer was overruled and judgment entered for plaintiff, and the petitioners appealed from the judgment of the superior court “on questions of law alone.” Hpon the hearing of the appeal, the superior court ordered “that the judgment of the lower court be and the same is hereby reversed, with directions to the said lower court to sustain the demurrer of the defendants to the complaint of the plaintiff, with leave to the said plaintiff to amend his complaint if so advised.” In the present proceeding in this court the petitioners seek to have said order reviewed, and to have annulled all that portion of the order after the word “reversed,” upon the ground that the superior court had no jurisdiction to make any of the latter part of said order.

The provisions of the code touching procedure on appeals from the justice’s court to the superior court in civil cases, where the appeal is taken “on questions of law” alone, are very brief and meager, and it is not surprising that decisions as to the power of the superior court on such appeals arc not entirely harmonious. Where the appeal is taken “on questions of fact” or “on questions of both law and fact,” the procedure seems to be plain. In that case no statement is required, “but the action must be tried anew in the superior court” (Code Civ. Proc., sec. 976), and the justice is required to transfer to the superior court certified copies of “his docket, the pleadings, all notices, motions, and other papers filed in the cause, the notice of appeal, and the undertaking filed.” (Code Civ. Proc., sec. 977.) On such appeal, therefore, the entire cause is transferred to the superior court, and thereafter the latter court has exclusive jurisdiction [470]and its judgment is final. There is, no doubt, some reason for the suggestion that the legislature intended this to be the result in all appeals, and that on an appeal on questions of law alone the cause should be considered as in the superior court for all purposes, and if the trial of issues of fact should be found necessary it should be had in the superior court. The legislature might have so provided, and as the superior court is also a trial court, and as on an appeal after a trial of the issues of fact in the justice’s court the case must in the end be finally tried in the superior court, it probably would have been a wise course and would have prevented much delay and expense if the superior court had been given entire and final jurisdiction of the case, no matter how it had been brought into that tribunal. But the language of the code and former decisions of this court preclude us from holding that such procedure has been provided. The decisions of this court to the point that an appeal transfers the whole cause finally to the superior court will be found, with perhaps one or two exceptions, to have been made in cases where the appeal was upon questions of “both law and fact.” Such wras the fact m the main case cited of Bullard v. McArdle, 98 Cal. 355, 35 Am. St. Rep. 176, where the court say: “When the effect of an appeal is to transfer the entire record to an appellate court, and to cause the action to be retried in that court as if originally brought therein, as is the ease where appeals are taken from a justice’s court upon questions of law and fact, the judgment appealed from is completely annulled, and is not further available for any purpose.” Such was also the fact in Rossi v. Superior Court, 114 Cal. 371.