Statutes. 1898. War Revenue Act.... Vol. 16, p. 382. Railroad Grant Revised Statutes. Sec. 2306. Desert Land Patent. NEW YORK. Code of Civil Procedure. Sec. 531. Building Contract 504, 509, 511 424 ...607, 608 407 471 OHIO. Code of Civil Procedure. Sec. 372. Dismissal 671 ENGLISH. Statutes. 5 Eliz., chap. 9, sec. 12. Subpoenaed Witness REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA. [Sac. No. 998. Department One.-December 5, 1901.] In the Matter of the Estate of GEORGE M. KASSON, Deceased. GEORGE W. LINDY, Plaintiff, v. MARTHA E. MCCHESNEY et al., Defendants. MARY E. MANN, Appellant. APPEAL UNDERTAKING-SEVERAL APPEALS-DISMISSAL.-An undertaking on appeal in the sum of three hundred dollars must be given in connection with every appeal from an order or judgment, in order to give the supreme court jurisdiction of such appeal. The only exception to this rule is where an appeal is taken at the same time from a judgment and order denying a new trial. If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals; otherwise, a motion to dismiss the appeal will be granted. This rule is not varied by the fact that one or more of the orders included in said appeal is not appealable. ID. ORDER DENYING NEW TRIAL EXAMINATION OF RECORD.-Upon a motion to dismiss an appeal, the supreme court will not consider any question which involves an examination of the record and the determination of the correctness of the action of the lower court upon the facts presented to it; consequently, an appeal from an order denying a new trial will not be dismissed upon the ground that the judgment was given against the appellant by default. MOTION to dismiss appeals from a judgment of the Superior Court of San Joaquin County and from various orders. Edward I. Jones, Judge. The facts are stated in the opinion of the court. 1. The appellant, Mary E. Mann, gave notice to the respondents, February 11, 1901, of her appeal from the order made in the above entitled proceeding, by which a nonsuit was granted and entered against her, and from the order given and entered therein, by which a default was granted and entered against her, and from the judgment given and entered therein, in favor of the other defendants and against her. On the same day she filed an undertaking on appeal, in which, after reciting her notice of appeal, the sureties undertook and promised on her behalf that she would pay all damages and costs which might be awarded against her "on said appeal or on a dismissal thereof," not exceeding the sum of three hundred dollars. The respondents now move to dismiss these appeals, upon the ground that no undertaking has been filed sufficient to give to this court jurisdiction thereof. The rule of practice in this state must be regarded as so settled as not to require the citation of authorities that, under the provisions of the code, there must be given an undertaking in the sum of three hundred dollars in connection with every appeal from an order or judgment, in order to give to this court jurisdiction of such appeal. The only exception to this rule is where an appeal is taken at the same time from a judgment and an order denying a new trial. If the appeal is from a judgment and any order other than an order denying a new trial, or if the notice of appeal is from more than one order, a separate undertaking must be given upon each of said appeals. Otherwise, a motion to dismiss the appeals will be granted. This rule is not varied by the fact that one or more of the orders included in said appeal is not appealable. (Centerville etc Co. v. Bachtold, 109 Cal. 111.) The jurisdiction of this court cannot be invoked to determine whether an order is appealable until the steps prescribed by the statute for invoking such jurisdiction have been complied with. In Centerville etc. Co. v. Bachtold, 109 Cal. 111, we said: "Whether the order appealed from is an appealable order is a question of law which can be determined only by a judicial comparison of the record containing the order with the statutes prescribing the orders from which appeals may be taken, and as this court cannot exercise its appellate jurisdiction of a cause until after the appeal has been perfected, we are limited, upon a motion to dismiss an appeal upon the ground that it has not been perfected, to a consideration of the steps taken for perfecting the appeal, and cannot look into the record either for the purpose of determining whether the order appealed from is appealable, or whether the appeal is without merit, or whether the court below has committed error in its rulings. On the other hand, whether an appeal has been perfected is a question of fact, depending upon proceedings subsequent to the entry of the order in the court below. When a motion to dismiss an appeal is made upon this ground, the character or nature of the order appealed from is not involved, and the action of the court is limited to determining whether the steps taken for the appeal are in compliance with the statute prescribing the mode of taking an appeal." 2. After the rendition of the judgment, the appellant moved for a new trial, which was subsequently denied by the court, and she thereupon took an appeal from this order. The respondents ask to have this appeal dismissed upon the ground that the judgment was given against the appellant by default, and that a motion for a new trial was unauthorized, and, therefore, there can be no appeal from the order denying a new trial. This, however, involves an examination of the record, and the determination of the correctness of the action of the court below upon the facts presented to it by the appellant, a question which cannot be considered upon a motion to dismiss the appeal. (See Jarman v. Rea, 129 Cal. 157, and cases there cited.) If the court had no authority to hear or determine a motion for a new trial, that may be a reason for affirming its action when the cause shall be heard, but is not a ground for dismissing the appeal. The appeals from the orders and judgment taken February 11, 1901, are dismissed. The motion to dismiss the appeal from the order denying a new trial is denied. Garoutte, J., and Van Dyke, J., concurred. [S. F. No. 1891. Department One.-December 5, 1901.] EDITH HALL, Respondent, v. FRANK H. KERRIGAN, Justice of the Peace, etc., Appellant. JUSTICE'S COURT OVERRULING DEMURRER-TIME ΤΟ ANSWER-CONTINUANCE-MANDAMUS-JUDGMENT BY DEFAULT.-A justice's court, after overruling a demurrer interposed by the defendant to the complaint, has the power, under section 874 of the Code of Civil Procedure, to allow the defendant two days in which to answer the complaint, and to postpone the trial for that period; and the justice cannot be compelled by mandamus to render judgment by default against the defendant. ID.-CONSTRUCTION OF CODE-REMEDIAL STATUTE.-Section 874 of the Code of Civil Procedure is remedial in its nature, and is to be liberally construed, with a view to effect its object, and give the parties an opportunity for a hearing upon the merits of their controversy. It is general in its terms, and controls other sections of the code in relation to the subject-matter of its provisions. APPEAL from a judgment of the Superior Court of the City and County of San Francisco, awarding a writ of mandate to Frank H. Kerrigan, Justice of the Peace. William R. Daingerfield, Judge. The facts are stated in the opinion of the court. H. H. Lowenthal, for Appellant. S. H. Regensburger, and Dunn & McPike, for Respond ent. HARRISON, J.-The respondent filed a complaint in the justice's court for the city and county of San Francisco against one Ernestine Kreling, claiming to recover certain moneys due her upon contract with said defendant, and the cause was assigned for hearing to the appellant, who was one of the justices of the peace for said city and county. The said Ernestine appeared in the action and filed a demurrer to the complaint. At the hearing upon the said demurrer, the parties appeared and argued the same, and upon its submission it was overruled. The defendant in said action did not answer the complaint forthwith upon the overruling of said demurrer, and the attorney for the plaintiff thereupon demanded that judgment be rendered against |