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3 20.

1. Judicial action and power.-To determine "what shall be adjudged or decreed between the parties, and with whom is the right of the case," is judicial action.—Marin Water & Power Co. v. Railroad Commission, 171 Cal. 706, 154 Pac. 864.

PART I.

OF COURTS OF JUSTICE,

TITLE I.

OF THEIR ORGANIZATION, JURISDICTION AND TERMS.

§ 33

1. Police courts, establishment of.-Prior to section 822, article XI of the constitution, police courts could not be established by a freeholders' charter.-Ex parte Yee Kim Mah, 31 Cal. App. 196, 159 Pac. 1060.

8 51.

2. A determination of the rights of an individual under the existing law is an exercise of judicial power. An essential element of judicial power, distinguishing it from legislative power, is that it requires the ascertainment of existing rights. — Marin Water & Power Co. v. Railroad Commission, 171 Cal. 706, 154 Pac. 864.

1. Original jurisdiction supreme courtEffect of Roseberry act.–The Roseberry act was not effective to prevent application to the supreme court to exercise its original jurisdiction by way of certiorari.—Great Western Power Co. v. Pillsbury, 170 Cal. 180, 9 N. C. C. A. 466, 149 Pac. 35.

8 52.
1. Appellate jurisdiction of

supreme court-Where amount less than $300.-The district court of appeals has no jurisdiction on appeal from an order setting aside a judgment against a defendant where the demand in the complaint was for less than three hundred dollars.--Wagner v. Cardinet Fountain Brush Co., 32 Cal. App. 493, 163 Pac. 337.

appellant is entitled to no relief, the proper order for the appellate tribunal in response to a motion to dismiss is to a ffirm the order of the lower court.-Ulm v. Prather, 29 Cal. App. 92, 154 Pac. 611.

2. -On remission by respondent.-Where on appeal the appellate court determines that the only ground warranting a reversal was the erroneous admission of evidence on the matter of damages, the respondent may ask and be permitted to remit a part of the judgment, and the court may upon such remission deny a new trial and affirm the judgment.—Simoneau v. Pacific Elec. R. Co., 166 Cal. 264, 49 L. R. A. (N. S.) 737, 136 Pac. 544.

3. As to law of the case.—What may be said in the opinion of the district court of appeal on the subject of accounting in an action involving a partnership, wherein the prayer of the complaint is for a dissolution of the firm at appointment of receiver, not for accounting, does not constitute the law of the case.—Miller v. Kraus, 51 Cal, Dec. 154, 155 Pac. 838.

4. The doctrine of "the law of the case,” generally speaking, has reference only to the principles of law announced by the court as those to be applied to a retrial of fact. It does not embrace the facts themselves nor include points of law not presented and determined.--Cowell v. Snyder, 171 Cal. 291, 152 Pac. 920.

5. The doctrine of the “law of the case" is not applicable to a judgment given after a second trial, where the first judgment is reversed as a whole and the cause retried upon amended pleadings and the evidence of the two trials not identical. -Cowell V. Snyder, 171 Cal. 291, 152 Pac. 920.

6. An order denying a motion to dismiss an appeal after it has become final is the law of the case in a subsequent appeal on the merits as to points involved on the motion.-Hartfield v. Alderete, 26 Cal. App. 604, 147 Pac. 991.

8 53.
POWERS OF SUPREME COURT IN

APPEALED CASES,
1. Affirmance-As to generally.

2. -On remission by respondent. 3-11. As to law of the case. 12–15. As to theory of the case. 16, 17. Moot questions. 18. Power to correct mistake of lower

court. 19. Remittitur may be recalled. 20. Rehearing, ground for. 21. Writ of supersedeas may not be

granted when. 1. Affirmance-As to generally.Where a notice of appeal in the court below confers jurisdiction upon the appellate court, and a mere inspection of the record shows that the

on a

7. In the event of a reversal by the district court of appeal and failure of the respondent to apply to the supreme court for a transfer of the case within thirty days, the decision of the district court of appeal becomes the law of the case second appeal.-Hill' v. Maryland Casualty Co., 28 Cal. App. 422, 152 Pac. 953.

8. In the event of a reversal by the district court of appeal on the ground that the trial court omitted to find on an issue which was material only in case the law applicable to certain facts was as contended by the plaintiff, the decision of the appellate court establishes the law as to these facts in his favor.-Hill v. Maryland Casualty Co., 28 Cal. App. 422, 152 Pac. 953.

9. When an appellant ceases to pursue his appeal from one appellate court to a higher, though he might do so, the decision of the court where he sees fit to rest is a final one.-Hill v. Maryland Casualty Co., 28 Cal. App. 422, 152 Pac. 953.

10. Where a point is not raised on a former appeal, the decision of the supreme court does not become the law of the case as to such point on a second appeal to the district court of appeal.-Knight v. Hall, 28 Cal. App. 435, 152 Pac. 952.

11. In this case, where the appellant contends that the action was prematurely brought, the adverse views of the appellate court upon the former appeal as to that issue must be adhered to as the law of the case.Morrell v. San Tomas Drying & Packing Co., 30 Cal. App. 194, 157 Pac. 818.

12. As to theory of the case. The SUpreme court will not consider whether the contributory negligence of a street-car passenger was properly pleaded, if evidence was introduced, instructions were given, and the case was tried on the theory that contributory negligence was in issue.-Kelly v. Santa Barbara Consol. R. Co., 171 Cal. 415, 153 Pac. 903.

13. In an action to recover damages for breach of contract, where the plaintiff tried the case upon the theory that the defendant's failure to perform was in issue, he will not be heard to complain upon appeal, for the first time, that the defendant's denial of failure to perform was ineffectual for any purpose.—Bayley v. Lee, 174 Cal. 137, 162 Pac. 96.

14. In an action brought under the Federal Employers' Liability Act to recover for damages for injuries received by an ployee of a railroad company, while employed at its roundhouse in the capacity of a night hostler-helper, where it is taken as an accepted fact by both parties at the trial that issue was joined on the question as to whether the hostler in control of the engine

backed the engine on to the turntable without receiving any signal from the plaintiff, and evidence pro and con on the question is admitted without objection, neither party will be permitted for the first time on appeal to claim that such issue was not joined. Smithson v. Atchison, Topeka & Santa Fe R. Co., 174 Cal. 148, 162 Pac. 111.

15. Where a case involving a tax title is tried on a certain theory, it can not be maintained on appeal that no such issue was presented.-O'Reilly V. All Persons, 29 Cal. App. 49, 154 Pac. 474.

16. Moot questions.-When a controversy existing at the time of the taking of an appeal has by reason of matters subsequently transpiring ceased to exist, the proper course is to dismiss the appeal.-In re Ambrose, 170 Cal. 160, 149 Pac. 43.

17. An appeal taken from an order granting a temporary injunction restraining the enforcement of an assessment levied by the board of directors of an irrigation district raises only a moot or academic question, and will be dismissed where the trial of the action resulted in a judgment in favor of the defendants and the judgment is affirmed on appeal.-Imperial Land Co. v. Imperial Irr. District, 173 Cal. 674, 161 Pac. 119.

18. Power to correct mistake of lower court.-Appellate court is without authority to correct a mistake made in the entry of a judgment in the lower court.-Harbaugh v. Lassen Irr. Co., 31 Cal. App. 764, 161 Pac. 755.

19. Remittitur may be recalled.-The supreme court has the power to recall a remittitur at any time that through mistake, etc., of the clerk, does not correctly state the judgment actually rendered by the court, but the court has no power, after judgment has become final, to change or modify the judgment actually given.-Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 156 Pac, 468.

20. Rehearing, ground for.-An order from which an appeal is taken must rest for its validity upon the record before the trial court where the order was made and brought up for review, and the fact that since the making of the order the complaint had been amended in respect to certain facts which changed its complexion so as to fully justify the order, can not be considered as a ground for a rehearing of the appeal.-Laam v. McLaren, 28 Cal. App. 632, 732, 153 Pac. 985.

21. Writ of supersedeas may not be granted when.-The supreme court has no power, pending an appeal from a judgment denying an injunction, to grant a writ of supersedeas.-Southern Pac. Co. v. Smith, 171 Cal. 8, 151 Pac. 427.

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CHAPTER IV.

SUPERIOR COURTS.

§ 67a. Judges in counties of the first class.

8 67a. JUDGES IN COUNTIES OF FIRST CLASS. In counties of the first class there shall be twenty judges of the superior court, any one or more of whom may hold court, and there may be as many sessions of said court at the same time as there are judges thereof. The said judges shall choose from their own number a presiding judge, who may at any time be removed as presiding judge and another judge chosen in his place by a vote of any twelve of them. The presiding judge shall distribute the business of the court among the judges thereof, and prescribe the order of business and perform such other duties as the judges of the said court may by rule provide. The judgments, orders and proceedings of any session of the superior court held by any one or more of the judges of said court shall be equally as effective as if all the said judges of said court presided at such session.

[Appointment of two additional judges.] Within thirty days after this act goes into effect, the governor shall appoint two additional judges of the superior court in counties of the first class in addition to the eighteen superior court judges already provided by law in and for the said counties of the first class who shall hold office until the first Monday after the first day of January, 1919.

[Election.] At the next general election to be held in November, A. D. 1918, two additional judges of the superior court shall be elected in counties of the first class, who shall be successors of the judges appointed hereunder, to hold office for the term prescribed by the constitution and by law.

The salaries of said additional judges shall be the same in amount and be paid in the same manner and at the same time as the salaries of the other judges of the said counties of the first class now authorized by law.

394.

History: Enactment approved April 11, 1909, Stats. and Amdts. 1909, p. 11; amended May 30, 1913, Stats, and Amdts. 1913, p. 334;

May 5, 1917, Stats, and Amdts. 1917, p. 247. In effect July 27, 1917. 871.

fendants in an action upon a stockholders'

liability where the of

prayer 1. Holding court by judges other

for damages

against them is for less than three hundred counties Construction of section. — This

dollars.-Johnson v. Hinkel, 29 Cal. App. 78, section applies to the trial of cases of emi

154 Pac, 487. nent domain.-Yolo Water & Power Co. v.

3. It is the amount of the demand that Superior Court, 28 Cal. App. 589, 153 Pac.

determines the jurisdiction of the superior court in actions at law seeking a money

judgment; and the fact that the demand is 876.

made up in part of items which may prove 1. Original jurisdiction of superior courts not to be recoverable will not make the -Construction.—The original jurisdiction of complaint subject to demurrer on that superior courts extends to sundry subjects ground.--Welch v. County of Santa Cruz, 30 declared in the constitution, and to "all Cal. App. 123, 156 Pac. 1003. such special cases and proceedings as are not otherwise specially provided for,” which 877. means necessarily that wherever a case or

SUPERIOR COURTS JURISDICTION ON cause exists which is outside the scope of

APPEAL. those directly mentioned in the provisions vesting jurisdiction in the superior court, 1. Appeal from justice's court-Limit of and jurisdiction thereof has not been vested

jurisdiction. in any other court or official body author- 2, 3. — Amendment to amount over $300. ized to exercise judicial functions, the juris

1. Appeal from justice's court-Limit of diction to hear and determine such special

jurisdiction.-On an appeal from a justice's case is vested in the superior court.-Roche

court, by virtue of the appeal, the superior v. Superior Court, 30 Cal. App. 255, 157 Pac.

court acquires such jurisdiction only as the 830.

justice of the peace had.—Tracy v. Sumida, 2. - Construction of subdivision 3.-The

31 Cal. App. 716, 161 Pac. 503. superior court has no jurisdiction as to de

CHAPTER V.

JUSTICES' COURTS.

Article I. Of justices' courts in cities and counties.

II. Of justices' courts in townships.
III. Of justices of the peace and justices' courts in general.

ARTICLE I.

OF JUSTICES' COURTS IN CITIES AND COUNTIES.

$ 86. Justices' clerk.

8 86. JUSTICES' CLERK. The supervisors of such city and county shall appoint a justices' clerk on the written nomination and recommendation of said justices or a majority of them, who shall hold office during good behavior, and who shall receive a salary of three thousand dollars a year.

[Oath and bond.] Said justices' clerk shall take the constitutional oath of office and give bond in the sum of ten thousand dollars for the faithful discharge of the duties of his office and in the same manner as is or may be required of officers of such city and county. A new or additional bond may be required by the supervisors of such city and county and in such amount as may be fixed by said supervisors whenever they may deem it necessary.

[Appointees.] The said clerk may appoint a chief deputy at a salary of two thousand four hundred dollars a year, a cashier at a salary of one thousand eight hundred dollars a year, and three deputy clerks and one messenger each at a salary of one thousand five hundred dollars a year.

[Duties.] Said justices' clerk and each of said appointees shall have authority to administer oaths, take and certify affidavits, and issue and sign writs, summons, and all other processes in any action, suit or proceeding in said justices' court, and generally to do all the acts specified in sections 102 and 102a of this code. They shall be at their respective offices for the dispatch of official business daily, except Sundays, holidays and Saturday afternoons, from the hour of nine o'clock a. m. until five o'clock p. m.

The salaries of said justices' clerk and his appointees shall be paid out of the treasury of said city and county in the same manner that salaries of officers of such city and county are paid, and shall be in lieu of all fees collected by them. All persons who have been appointed to such positions and who have served a period of six months in their respective positions, and all persons who may be appointed to such positions shall, after they have served a period of six months in their respective posi. tions, be entitled to all the benefits of the civil service laws of this state.

[Repeal.] Sec. 2. All acts and parts of acts in conflict with the provisions of this act are hereby repealed.

History: Original section, relating to appellate jurisdiction of county courts, enacted March 11, 1872; repealed and present section enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 29; amended April 12, 1915, Stats, and Amdts. 1915, p. 58; April 16, 1917, Stats, and Amdts. 1917, p. 121. In effect July 27, 1917.

ARTICLE II.

OF JUSTICES' COURTS IN TOWNSHIPS.

$ 103. Justices' courts and justices.
$ 103c. Justices' clerks, counties of third class [new].

8 103. JUSTICES' COURTS AND JUSTICES. There shall be at least one justice's court in each of the townships of the state, for which one justice of the peace must be elected by the qualified electors of the township, at the general state election next preceding the expiration of the term of office of his predecessor. In any county where, in the opinion of the board of supervisors, the public convenience requires it, the said board may, by order, provide that two justices' courts may be established in any township, designating the same in such order; and in such case, one justice of the peace must be elected in the manner herein provided for each of said courts.

[Number of justices in cities.] In every city of the first and one-half class there must be five justices of the peace, and in every city of the second class there must be two justices of the peace, and in every city of the second and one-half class there must be one justice of the peace, and in every city of the third and fourth classes there must be one justice of the peace, to be elected in like manner by the electors of such cities or town, respectively; and such justices of the peace of cities shall have the same jurisdiction, civil and criminal, as justices of the peace of townships and township justice's courts.

[Jurisdiction.] Said justices of the peace of cities and justice's courts of cities shall also have jurisdiction of all proceedings for the violation of any ordinance of any city in which courts are established, both civil and criminal, and of all actions for the collection of any license required by any ordinance of any such city, and generally exercise all powers, duties and jurisdiction, civil and criminal, of police judges, judges of police courts, recorder's court or mayor's courts, within such city.

[Eligibility.) No person is eligible to the office of justice of the peace in any city of the first, first and one-half, second, second and one-half or third class, who has not been admitted to practice law in this state; and no justice of the peace shall be permitted to practice law before another justice of the peace in the city, town or county in which he resides, or to have a partner engaged in the practice of law in any justice's court in such city, town or county.

[Salaries.] Every city justice of the peace in any city of the first and one-half class shall receive a salary of four thousand two hundred dollars per annum, and every city justice of the peace in any city of the second class shall receive a salary of three thousand six hundred dollars per annum, and every city justice of the peace in any city of the second and one-half class shall receive a salary of three thousand dollars per annum, and every city justice of the peace in any city of the third class shall receive a salary of two thousand dollars per annum, and every city justice of the peace in any city of the fourth class shall receive a salary of one thousand five hun. dred dollars per annum; and each justice of the peace shall be provided by the city authorities, or by the board of supervisors in counties where the salary of the city justice of the peace is paid by the county, with a suitable office in which to hold his court. The compensation of the justice of the peace of any city shall be paid by warrants drawn each month upon the salary fund, or if there be no salary fund, then upon the general fund of such city or county, as the case may be, such warrants to be audited and paid as salaries of any other city or county officials. All fees which are chargeable by law for services rendered by such city justice of the peace in cities aforesaid shall be by them respectively collected, and on the first Monday of each month every such city justice, or his clerk shall make a report, under oath, to the city or county treasurer, as the case may be of the amount of fees so by him collected and pay the amount so collected into the city or county treasury, as the case may be

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