Opinion
Application for a writ of review.
COUNSEL:
George G. Blanchard, and Charles A. Swisler, for Petitioner.
Irwin & Irwin, for Respondent.
JUDGES: In Bank. Foote, C. Belcher, C. C., and Searls, C., concurred.
OPINION
FOOTE, Judge
On the nineteenth day of November, 1885, this court ordered the issuance in this cause of an alternative writ of certiorari to the Superior Court of El Dorado County. (68 Cal. 24.)
Upon the return of the [12 P. 673] certified transcript of the proceedings had by that court in the case of Went v. Hall, it appears that the appeal pending therein from a Justice's Court was dismissed upon motion because the former court was of opinion that it did not have jurisdiction to hear and determine the said cause upon its merits.
It further appears that the opinion was based upon the view entertained by the court, that as prerequisites to the validity of such appeal, it was necessary that the notice thereof should have been filed in the Justice's Court prior to the service of a copy of the same upon the adverse party, and that the undertaking should have been filed simultaneously with said notice, notwithstanding that all of those jurisdictional acts had been performed within thirty days of the date of the rendition of the original judgment.
This construction of sections 974 and 978, Code of Civil Procedure, was clearly erroneous, as this court held in Coker v. Superior Court , 58 Cal. 177.
The Superior Court of El Dorado County had jurisdiction to hear and determine the case before it upon its merits, and the arbitrary dismissal of it upon motion was an improper divestiture of its rightful jurisdiction.
Where such is the case, the writ of certiorari is a proper proceeding to annul the order dismissing the appeal. (Levy v. Superior Court , 66 Cal. 292.)
The order of dismissal should be annulled, the cause reinstated, heard, and determined upon its merits by the Superior Court of El Dorado County.
The Court. -- For the reasons given in the foregoing opinion, the order of dismissal is annulled, and the cause ordered reinstated, to be heard and determined upon its merits.