this action was barred before commenced, unless the filing of the petition in the probate proceedings and the bringing of this action within one year from the annulling, on a writ of review, of the decree obtained by plaintiff on said petition prevents the bar of the statute.

And this seems to be the real contention of respondent and the theory upon which his complaint is framed. Section 355 of the Code of Civil Procedure is as follows: "If an action is commenced within the time prescribed therefor, and a judgment thereon for the plaintiff be reversed on appeal, the plaintiff . . . may commence a new action within one year after the reversal.”

The judgment in question here was not "reversed on appeal," but was annulled and set aside on a writ of review, and in order to uphold the action of the trial court we are asked to hold that a reversal on appeal includes an annulling on a writ of review. We are cited to McOmber v. Chapman, 42 Mich. 117, [3 N. W. 288], as sufficient authority for such construction. It was held in the aobve-entitled case that a reversal on a writ of certiorari was sufficient to authorize a new suit under a statute which authorized a new suit where the first judgment was reversed on a writ of error. The Michigan statute, however, had other provisions which seemed to indicate a general intent to save the right to bring a new suit where the first suit had abated or failed without fault of the plaintiff.

Furthermore, in McOmber v. Chapman the judgment that had been reversed was one rendered by a justice of the peace, and in Michigan a writ of certiorari is used to review errors of law committed during the trial of a cause in a justice's court, and is not confined, as in this state, to setting aside proceedings for want of jurisdiction. (Howell's Ann. Stats. Mich., sec. 7031, et seq.) Even the evidence may be reviewed where there is a total lack of evidence to support the judgment, or some material fact necessary to support a recovery. (Welch v. Bagg, 12 Mich. 43; McGraw v. Schwab, 23 Mich. 13; Brown v. Blanchard, 39 Mich. 790; Lake Superior Building Co. v. Thompson, 32 Mich. 293.)

So, generally, in Michigan both writs of certiorari and writs of error are used to correct errors of law occurring in the trial court; writs of error to review judgments of courts of

law and of record, in proceedings had according to the course of the common law (Holbrook v. Cook, 5 Mich. 225), or proceedings substantially analogous thereto (Fletcher v. Clark, 39 Mich. 374), and writs of certiorari to correct errors of law in proceedings that are not according to the course of the common law (Howell's Ann. Stats. Mich., sec. 8691, and cases cited in note). The time within which either may issue is the same (Howell's Ann. Stats. Mich., sec. 8693).

It is thus seen that the Michigan court had good grounds for holding that a reversal under a writ of certiorari was in substance a reversal under a writ of error within the meaning of the statute allowing a new action to be brought within a year from such reversal. Both writs are used in that state for procuring a reversal of the action of the trial court for errors of law committed in the trial of the action.

Our code lays down the rule for its own construction in these words: "Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar or appropriate meaning or definition." The word "appeal" in the law of this state refers to the proceedings that are provided for in title XIII, part II, of the Code of Civil Procedure, where the time and method of taking an "appeal" are minutely set forth.

A writ of review (certiorari) is provided for in chapter I, title I, of part III of the Code of Civil Procedure, and may be granted in certain prescribed cases, where there is no appeal (Code Civ. Proc., sec. 1068), and only where jurisdiction has been exceeded.

Our code, in the section just cited, uses the word "appeal" as indicating something different from a writ of review. While to some minds it may be difficult to suggest a reason why the legislature, in the case of a reversal on appeal, should provide that a new action may be brought, and not when the same result is secured by a writ of review, it seems to be so written.

It may be suggested in this connection, however, that limitations exist as to appeals that do not exist as to writs of review. Thus, appeals must be taken within a very limited time

(the longest being six months from the judgment to be reviewed), while no such limitation exists with regard to the right to a writ of review. This difference may well be said to justify a rule allowing the right to bring a new action in the one case and not in the other. We do not think that we are justified in construing the word "appeal" as used in section 355 of the Code of Civil Procedure, as including a writ of review. For the reasons above set forth, the demurrer should have been sustained.

Appellant also urges that the filing of the petition by plaintiff in the probate court was not the bringing of an action such as would interrupt the running of the statute of limitations for the reason that such court had no jurisdiction in such a proceeding to enter a judgment that defendant pay the money obtained by him to plaintiff; but in view of the conclusion we have reached on the question last discussed, it is not necessary to determine the sufficiency of this point. Suffice it to say that in some states it is held that the bringing of an action in a court without jurisdiction of such action. is not sufficient to interrupt the running of the statute (Gray v. Hodge, 50 Ga. 262; Edwards v. Rose, 58 Ga. 147; Sweet v. Electric Light Co., 97 Tenn. 252, [36 S. W. 1090]; Donnel v. Gatchell, 38 Me. 217); while the contrary doctrine is held elsewhere (Smith v. McNeal, 109 U. S. 426, [3 Sup. Ct. 319]; Little Rock etc. Ry. Co. v. Manees, 49 Ark. 248, [4 Am. St. Rep, 45, 4 S. W. 778]; Ball v. Biggam, 6 Kan. App. 42, [49 Pac. 678]; Blume v. City of New Orleans, 104 La. 245, [29 South. 106]; Woods v. Houghton, 67 Mass. 580). The judgment is reversed.

Harrison, P. J., and Cooper, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 21, 1905, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1906.

[Civ. No. 41. Second Appellate District.-November 23, 1905.]

RICHARD F. COX, Respondent, v. SOUTHERN PACIFIC COMPANY, Appellant.

APPEAL DISMISSAL JUDGMENT ON APPEAL FROM JUSTICE'S COURTKILLING OF ANIMALS ON RAILROAD TRACK-NEGLIGENCE TITLE TO LAND IMMATERIAL. A judgment rendered on appeal from a justice's court for the sum of $250 for the killing of a horse and mare of plaintiff on defendant's railroad track, in an action the gist of which was that their death resulted from the negligence and recklessness of defendant's employees while the animals were on the track, and in which an allegation and finding of title to the adjacent land are immaterial, is not within the appellate jurisdiction of this court, and an appeal therefrom must be dismissed.

APPEAL from a judgment of the Superior Court of Tulaze County. W. B. Wallace, Judge.

The facts are stated in the opinion of the court.

Maurice E. Power, for Appellant.

T. E. Clark, for Respondent.

SMITH, J.-The defendant appeals from a judgment against it for the sum of $250, rendered on appeal from a justice's court. The judgment is for damages for the killing of a horse and mare of the respondent by the appellant's train; and, the amount involved being less than $300, the respondent urges that the case is not within the jurisdiction of this court. There is no reply from the appellant on this point; but it seems that the point was urged by the defendant in the lower court on the ground that the case involved a question of title as to real property. There is, however, nothing in this contention. The first count of the complaint, indeed, alleges that the plaintiff's horse entered upon the track through a gap in defendant's fence, which was negligently and carelessly left open; and in the amended answer it is alleged, in effect, that the land adjacent to the fence, where the gap was, was at all the times mentioned in the complaint the property of Kittie Colburn, and that plaintiff did not have any right or title thereto; and the court finds that this and all the other allegations and denials of defendant's

answer are untrue, which is, in effect, to find on a question as to the title of the land. And it is also true that it appears from the evidence, without contradiction, that the land was the land of Kittie Colburn, and that it was expressly admitted by the plaintiff on the trial that he neither had nor claimed any interest therein. But, looking at the complaint, it will be seen that it is alleged that the death of the horse resulted from the negligence and recklessness of the defendant's employees after the horse was on the track; and this must be taken as the gist of the action. The allegation and finding as to the title of Kittie Colburn and the plaintiff, respectively, to the land adjacent to the railroad, are therefore immaterial. The appeal must therefore be dismissed, and it is so ordered.

Gray, P..J., and Allen, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 22, 1905.

[No. 82. Third Appellate District.-November 23, 1905.] CHARLES H. MURPHY, Appellant, v. F. A. BONDSHU, Auditor of Mariposa County, Respondent.

EXCESSIVE PAYMENT
MANDAMUS TO AUDITOR.

TAXES - REDEMPTION FROM SALE TO STATE LIMITATION UPON POWER OF SUPERVISORS The supervisors have no jurisdiction to allow an excessive claim for money paid upon redemption from a sale to the state for delinquent taxes, owing to an erroneous estimate of the auditor, where such claim was presented for allowance more than one year after the payment was made, and the claim there for accrued; and mandamus will not lie to compel the auditor to allow such claim, nor to obtain relief on the ground of fraud or mistake in the auditor's estimate.

ID. CASE AFFIRMED AND APPLIED.-The case of Perrin v. Honeycutt, 144 Cal. 87, is affirmed and applied to the facts of the present case. ID.-ACTION FOR MANDATE TO RECOVER EXCESS.-The action for the writ of mandate to compel payment of the excess is not one for the relief on the ground of mistake, and does not come within section 338 of the Code of Civil Procedure, but is an action for relief under section 3804 of the Political Code.