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Acker v. Superior Court

Supreme Court of California
Dec 23, 1885
68 Cal. 245 (Cal. 1885)

Opinion

         Department One

         Application for a writ of review.

         COUNSEL:

         Royce & Cummins, for Petitioner.

          Carl T. Graef, for Respondent.


         JUDGES: McKee, J. Ross, J., and McKinstry, J., concurred.

         OPINION

          McKEE, Judge

         Application for a writ of review.

         From the averments of the petition it appears that, on an appeal to the Superior Court of the city and county of San Francisco, taken on questions of both law and fact, from a judgment given in an action tried by a Jus tices' Court, the Superior Court ordered the [9 P. 110] judgment reversed and the cause remanded for further proceedings.

         The order remanding the cause to the Justices' Court for further proceedings is in excess of the jurisdiction of the court, and void.

         For, as the case was originally tried in the Justices' Court, and the appeal was taken "on questions of both law and fact," appellate jurisdiction over the action attached to the Superior Court, to try and determine the case anew. ( Section 976, Code Civ. Proc.)

         In the exercise of this jurisdiction the Superior Court cannot delegate its power over the action to any other tribunal. It has no authority to remand the cause to the Justices' Court, whence it came, for trial de novo. It must itself proceed with the trial (Section 976, supra; Coyle v. Baldwin , 5 Cal. 75; Hitchcock v. Freelon , 8 Cal. 517); and if it refuses it may be compelled to proceed by mandamus. (Beaty v. Superior Court , 11 P. C. L. J. 70.)

         Let a writ of review issue as prayed for.


Summaries of

Acker v. Superior Court

Supreme Court of California
Dec 23, 1885
68 Cal. 245 (Cal. 1885)
Case details for

Acker v. Superior Court

Case Details

Full title:B. B. ACKER, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN…

Court:Supreme Court of California

Date published: Dec 23, 1885

Citations

68 Cal. 245 (Cal. 1885)
9 P. 109

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