Slike strani

of the proceeding in contested election cases and ap pellate jurisdiction, citing numerous authorities, see Lord v. Dunster, 79 Cal. 477.

An action for divorce is a case in equity. The jurisdiction over appeals is as broad as is the original jurisdiction in matters of equity, and an appeal lies to the Supreme Court from judgment of divorce rendered by Superior Court. An order allowing alimony and counsel fees, pendente lite, is a definite judgment, independent of the result of the divorce proceeding, and is appealable, but being a matter resting in the discretion of the court making the order, it will not be disturbed by the appellate court unless clearly a palpable abuse of discretion. Sharon v. Sharon, 67 Cal. 197.

The legislature having failed to provide a mode of appeal in cases where the constitution has conferred the right to appeal, the Supreme Court will adopt a suitable mode. Sections 1235-1246, Penal Code, prescribe the mode of appeal in all cases amounting to felony, but the constitution authorizes appeal in all cases prosecuted by indictment or information. People v. Jordan, 65 Čal. 644.

Where the action involves the right of defendants to possess the lands claimed as a toll road, an appeal to Supreme Court will lie. People v. Horsely, 65 Cal.


Appeal does not lie to Supreme Court in cases of contempt, even though the amount of fine exceeds three hundred dollars, and although such proceedings have been classed as "criminal." No appeal lies in a criminal case unless it is prosecuted by information or indictment. Tyler v. Connolly, 65 Cal. 28.

An appeal does not lie to the Supreme Court from the judgment of the Superior Court affirming the judgment of a police court in a criminal case, it not being a case "prosecuted by indictment or information in a court of record." People v. Mieggs Wharf Co., 65 Cal. 99.

An application bearing the marks of an original suit for injunction will not be entertained, in an action already on appeal in the Supreme Court.

There being no impediment to the appeal, such writ is not required "in aid" of appellate jurisdiction. Swift v. Shepard, 64 Cal. 423, and Santa Cruz Gap T. Co. v. Santa Clara County, 62 Cal. 40.

The amount sued for is the test of jurisdiction, and if that exceeds three hundred dollars exclusive of interest, the Superior Court has jurisdiction, and no matter what be the amount of judgment in such case in Superior Court, appeal will lie to the Supreme Court. Dashiell v. Slingerland, 60 Cal. 653.

Of case of indictment of new city hall commissioners of San Francisco, for misdemeanors in office, the Supreme Court had appellate jurisdiction. People v. Kalloch, 60 Cal. 113.

Under the former constitution and also under the present, the Supreme Court has jurisdiction of appeals upon questions of law alone, in such criminal cases as can come before it. People v. Smallman, 55 Cal. 185.

The section confers original jurisdiction upon the Supreme Court to issue writs of mandamus, certiorari and prohibition. The constitution of 1849 gave original jurisdiction to issue writs of habeas corpus only. (People v. Turner, 1 Cal. 144; White v. Lightwell, Id. 347; Cowell v. Buckalew, 14 Id. 642.) The constitution of 1863, contained the clause: "The courts shall also have power to issue writs of mandamus, certiorari, prohibition and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction." In Kiggins v. Houghton, 25 Cal. 261, it was said this language conferred original jurisdiction as to said writs, since the language employed indicates an intention to change the conditions formerly existing, and the court already had power to issue said writs in aid of its appellate jurisdiction, and although the language is changed in the present constitution, it is held that the intention to give the new court original jurisdiction to issue said writs is apparent, in view of the settled construction given the former constitution. Hyatt v. Allen, 54 Cal. 353, Thornton, J., dissenting.



There bein
is not requires
Swift. She

T. Co. r. SIET

The samour I

and if that exsping
of intereste

no matter FIC & E

case in Superter preme Coun.. Of case of m

sioners of San

the Supreme
People r. Enio
Under me fomer
present ear
peals pon m

cases 25 GL De

55 Cal. 155. The sen Supreme Cen tiorari and gave origin corpus only Beaten T .Lightwell 642.) The clause: The

VI, Sec. 5

age, and of t otherwise of naturalhave appeland other ay be preil holidays s shall exions for the or for the immenced in

t thereof afcourts and mandamus,

s corpus, on al custody in of prohibiand non-ju

of proceedk Commisp. 740) or )) and said the acts of reviewed is 00 Cal. 105. t to waters o maintain tion to quiet 1 action is in h the land is o B. W. Co., Cal. 394. >m dumping f's premises, er an adverse had in the The action le against deCamp, supra. nt, toll," etc., assessments


119 198 119 616

Referring to Appeal of Houghton, 42 Cal. 35, it is held, in addition to what is said in that case, that "special cases or proceedings" are not included in "cases at law," in which the Supreme Court is given jurisdiction, because, in the fifth section of article VI, special cases and proceedings are spoken of as constituting a separate and distinct class from cases at law. In this section (4) are mentioned all the classes of civil cases in which the Superior Court is given original jurisdiction, (by Sec. 5, Art. VI) except actions for divorce and annulment of marriage, and special cases and proceedings, and except also, that the appellate jurisdiction of the Supreme Court is declared to extend to probate matters, only where an appeal is provided by law. Bixler's Appeal, 59 Cal. 550.

The former constitution (Sec. 4, Art. VI) contained the same language concerning writs of prohibition, mandamus and certiorari. It was decided in Maurer v. Mitchell, 53 Cal. 291, that the writ of prohibition mentioned in the constitution is the writ of prohibition as known at common law-an original remedial writ provided as a remedy for the encroachment of jurisdiction. Its office was to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction. The legislature in amending section 1102, C. C. P., had no authority to extend the application of the writ to arrest the proceedings of any tribunal, corporation, board or person "whether exercising judicial or ministerial functions." Camron v. Kenfield, 57 Cal. 550.

SECTION 5. The Superior Court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars, and in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for; of actions of forcible entry and detainer; of proceedings in insolvency; of action to prevent or abate a nuisance; of all matters

« PrejšnjaNaprej »