Summary
In Berg v. Traeger a hearing before the Supreme Court was granted, and that court sustained the right of appeal, and decided that case on the merits of the appeal.
Summary of this case from Stout v. FarwellOpinion
Rehearing Denied March 8, 1930
Hearing Granted by Supreme Court April 7, 1930
Appeal from Superior Court, Los Angeles County; Hartley Shaw, Judge.
Action by Enoch Berg against William I. Traeger, as Sheriff of Los Angeles County. A judgment adverse to defendant in municipal court of the city of Los Angeles was affirmed by the superior court of Los Angeles county, and the defendant appeals therefrom. Appeal dismissed. COUNSEL
Nathan M. Dicker and Abe Richman, both of Los Angeles, for appellant.
A.E. McManus, of Los Angeles, for respondent.
OPINION
ELLIOT CRAIG, Justice pro tem.
This action was commenced and prosecuted to judgment in the municipal court of the city of Los Angeles. Defendant appealed from that judgment to the superior court of Los Angeles county. The superior court affirmed that judgment, and defendant on March 30, 1927, appealed to this court from the judgment of the superior court affirming said judgment of the municipal court. This is an action to recover the sum of $999 and interest as damages arising out of the alleged conversion of an automobile by the defendant as sheriff of Los Angeles county. The record shows that the cause of action arose within Los Angeles county.
The jurisdiction of this court to pass upon said pending appeal has not been questioned in this case; nevertheless, this court must at all times take cognizance of its own jurisdiction. Discussion is required on only two questions:
First. Is there now a right of appeal to this court in a case of this kind?
Second. If the first question is answered in the negative, then does this court now have jurisdiction to pass upon an appeal heretofore duly perfected, but not yet decided?
Our discussion is somewhat shortened by reference to the case of Johnston v. Wolf, 280 P. 980, decided by the Supreme Court of this state on September 27, 1929, on hearing after judgment in the District Court of Appeal (274 P. 1028), under date of February 14, 1929. That decision rests upon the jurisdiction of municipal courts, as provided by section 29 of the act authorizing the establishment of municipal courts, etc. (Deering’s Gen.Laws, Consol.Supp.1925-27, p. 1607), as said section stood prior to the legislative amendments of 1929, effective August 14, 1929. The opinion as rendered by the Supreme Court does not disclose any consideration of said 1929 amendments, although said amendments became effective while the motion to dismiss was pending in that court.
Prior to August 14, 1929, said section 29 did provide that municipal courts shall have exclusive original jurisdiction of all cases at law in which the demand, exclusive of interest, amounts to $1,000 or less, arising in the city where the court exists, and concurrent jurisdiction with the superior and justices’ courts of causes of like amount, arising outside of the city, but within the county in which the court is situated. Section 13, art. 6, of the Constitution provides: "Notwithstanding any provision contained in this article, the legislature may fix by law the jurisdiction of municipal courts and inferior courts in cities having municipal courts. ***" As amended by chapter 477, Statutes of 1929, p. 837, said section 29 now provides that: "Each municipal court shall have exclusive original jurisdiction of all civil cases and actions, arising within the city *** in which such municipal court is established, of the following classes:
"1. All cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to two thousand dollars or less. 2. *** 3. ***; " and "Each municipal court shall have original jurisdiction of all cases specified in subdivisions 1, 2 and 3 hereinabove, arising outside the city in which a municipal court is established, and within the county in which such municipal court is established. ***"
In conformity with the provisions of section 5, art. 6, of the Constitution, as amended November 6, 1928, section 76 of the Code of Civil Procedure was amended by the Legislature, effective August 14, 1929. Said code section now reads: "The superior courts shall have original jurisdiction: 1. In all civil cases and proceedings except cases and proceedings in which jurisdiction is or shall be given by law to municipal or to justices’ or other inferior courts, and in all such special cases and proceedings as are not otherwise provided for. ***"
A study of the Constitution and statutes on jurisdiction of superior and municipal courts, as demonstrated by the material parts thereof fully set forth above, shows that there is now no instance of concurrent jurisdiction in the superior court and the municipal court in an action at law wherein the cause of action arises either within the city in which such municipal court is situated or outside such city but within the county.
The jurisdiction of District Courts of Appeal is provided for and controlled by section 4b, art. 6, of the Constitution, to wit: "The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts (except in cases in which appellate jurisdiction is given to the supreme court) in all cases at law in which the superior courts are given original jurisdiction. ***"
An action of this kind is not within the appellate jurisdiction of the Supreme Court. Section 4, art. 6, Const.
It is therefore apparent from all of the foregoing that there is now no right of appeal to this court in a case such as the one before us.
We next take up the second question. "Any statute may be repealed at any time, except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal." Pol.Code, § 327.
As said by Chief Justice Chase in Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264, and approved by the Supreme Court of this state in People v. Bank of San Luis Obispo, 159 Cal. 65, 71, 112 P. 866, 37 L.R.A.(N.C.) 934, Ann.Cas.1912B, 1148: "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."
The change in appellate jurisdiction of this court, effected by the amendment of section 29 of the Municipal Court Act, supra, related to a change of remedy only. Moye v. National Surety Co. (Cal.Sup.) 280 P. 982, citing People v. Bank of San Luis Obispo, supra; Pacific Gas Radiator Co. v. Superior Court, 70 Cal.App. 200, 232 P. 995, 996.
"Appeals have no existence at common law, and any right of appeal must be based upon some provision of the Constitution or of the statute." Pacific Gas Radiator Co. v. Superior Court, supra; Gale v. Tuolumne Water Co., 169 Cal. 46, 145 P. 532.
In the case of Pacific Gas Radiator Co. v. Superior Court, supra, at page 202 of 70 Cal.App., 232 P. 995, 996, the court said: "As a general rule every state has full authority to control all remedies which it may provide, and may abolish a previously existing remedy by appeal, even as to cases which have been appealed. *** When the jurisdiction of an appellate court depends upon a statute, which is repealed after an appeal has been taken, but is still undetermined, the appeal should be dismissed. Ex parte McCardle, 74 U.S. 506, 19 L.Ed. 264. In People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L.R.A.(N.S.) 934, Ann.Cas.1912B, 1148, our Supreme Court, after reviewing the authorities at great length, announces the rule to be that when pending an appeal from a judgment the law which is its sole support is repealed, the appellate court cannot proceed further with the litigation. This decision cites many authorities to the effect that, where jurisdiction depends upon a statute, suits brought during the existence of the statute fall at once upon its repeal."
We conclude, therefore, that this court is now without jurisdiction to pass upon this appeal.
The appeal to this court is dismissed.
We concur: CONREY, P.J.; HOUSER, J.