lor, 31 Cal. 341.] Hart v. Carnall-Hopkins Co. Opinions filed June 16, 1894.

Where an administratrix is ordered imprisoned for contempt in refusing to pay a claim against the estate, which claim has been allowed by the court and ordered paid, and where the administratrix had prior to the contempt proceedings appealed from the order allowing the claim, Held, an appeal lies from such order [Section 963 Code of Civil Procedure], irrespective of the amount involved, and pending such appeal the administratrix could not be punished for contempt for not paying the claim. Ruggles v. Superior Court, Beatty, C. J., dissenting. Opinion filed June 15, 1894.

The general rule is well established that appeals can only be taken in such probate proceedings as are mentioned in subdivision 3 of section 963 Code of Civil Procedure. In re Wakerly, 94 Cal. 353. And in all cases where the Superior Court, sitting in probate, is authorized to hear a motion for new trial, an appeal will lie from the order thereon. Estate of Bauquier, 88 Cal. 303. Also, In re Moore, 86 Cal. 59; In re Ohm, 82 Cal. 160.

No appeal lies from an order of Superior Court refusing to remove an administrator. Estate of Moore, 68 Cal. 394.

There is no appellate jurisdiction in cases of contempt. In re Vance, 88 Cal. 262, approving Tyler . Connolly, 65 Cal. 30, and Sanchez . Newman, 70 Id. 210. See also, In re Ohm, 82 Cal. 160.

An appeal from order of Superior Court dis

missing proceeding in certiorari and affirming. judgment of a justice's court, in a matter involving less than three hundred dollars, will be dismissed by Supreme Court, though the objection to jurisdiction of this court is not raised by counsel. Bienefeld v. Fresno M. Co., 82 Cal. 425.

answer.

The appellate jurisdiction is not controlled by the amount of counter claim set up in an Where the action is brought on a money demand exceeding three hundred dollars, the ad damnum clause in the complaint is the test of jurisdiction. Lord v. Goldberg, 81 Cal. 596.

An action to try the right to hold the office of member of the board of health of San Francisco, under sections 802-810, Code of Civil Procedure is in the nature of quo warranto, and also embraces a money demand exceeding $300, since a fine of $5000 may be imposed, and upon both grounds the Supreme Court has appellate jurisdiction. [Distinguishing Houghton's appeal, 42 Cal. 36. People v. Perry, 79 Cal. 105.] As to nature of the proceeding in contested election cases and appellate 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, 6

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 Cal. 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. 381.

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 . Connolly, 65 Cal. 28. v.

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. Meiggs 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 . 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 r. 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 neces

sary or proper to the complete exercise of its appellate jurisdiction." In Kiggins. 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.

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]