"Morris, who had been appointed receiver of the bank pending the action, was joined as a party defendant, and by agreement of the parties, the answer of the bank stood as his

answer.

"The findings were in favor of the defendants on all the issues except that of fraud, and judgment went for them. The plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

"Various points are raised, but we think it will be unnecessary to consider anything beyond the attack by appellants upon the finding that Palmer exceeded the scope of his authority as cashier in undertaking to sell the stock in question. In view of the findings negativing fraud, the only ground upon which the bank could repudiate the sale to McBoyle, and the subsequent pledge, was the want of authority in Palmer to sell. If, in law and in fact, he had such authority, title to the stock passed by the sale, and the pledgor was entitled, upon tender of the amount for which he had pledged the shares, to a return of the certificate.

"The powers of the cashier of the defendant bank were defined in its by-laws, a part of which read as follows: "The cashier shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell bills of exchange and to issue certificates of deposit. He shall have general charge and supervision, subject to the advice and control of the president and directors of the affairs of the bank, and shall be generally authorized to do whatever may be necessary in the management of the business of the bank. . . .'

"The extent of the authority of a bank cashier has been considered in many cases. Generally speaking, he has 'greater inherent powers than any other corporate officer.' (2 Cook on Corporations, sec. 718.) He has 'full charge of the bank's personal property, except so far as withdrawn from his control by the bank or by the directors.' (Morse on Banking, sec. 157; Wild v. Bank, 3 Mason, 505, [Fed. Cas. No. 17,646].) He is the 'executive officer, through whom the whole financial operations are conducted.' (First Natl. Bank v. Greenville etc. Co., 24 Tex. Civ. App. 645, [60 S. W. 828].) That he may negotiate and transfer, on behalf of the bank, negotiable paper owned by it is universally held. (Morse on Banking, sec. 158.)

"The respondents contend, however, that the authority of the cashier, as such, does not extend to the disposition of the real property belonging to the bank, or of any personal property so belonging, other than negotiable paper. At the same time it is conceded that he has power to sell property mortgaged or pledged to the bank, as a means of collecting a debt due it. If we assume the correctness of these propositions, what is the basis of the distinction between a sale of property owned generally, and a sale of property held under mortgage or pledge to secure the payment of a debt? Undoubtedly it is that acts which are beyond the scope of the ordinary business of the bank, acts, that is to say, which call for the exercise of judgment or discretion affecting the policy to be pursued, are to be performed by or under the mandate of the directors, while acts which are included in the ordinary business are properly to be done by the cashier. The latter class of transactions is the one comprised in the provision of the by-laws of this bank, authorizing the cashier to do 'whatever may be necessary in the management of the business of the bank.' The sale of property held by the bank for investment or similar purposes is not a part of the ordinary business of the bank. On the other hand, the collection of debts due it is clearly a part of its ordinary business, and hence such collection, together with any acts incidental or necessary to such collection, may properly be carried on by the cashier under his inherent authority.

"If we apply this rule to the situation disclosed by the record in the case at bar, we cannot doubt that the sale of the stock in question was within the scope of Palmer's authority as cashier. The 599 shares of the stock of Burnham-Standeford Company had originally been pledged to the Union. National Bank as security for a loan. After so holding them for some years, the bank, in 1904, acquired the legal title to the stock by virtue of a sale made in proceedings in insolvency brought against the pledgor. The defendant bank was organized under the act of Congress as a national bank. such, it had no powers beyond those specified in the act under which it existed, and such other powers as were necessarily incident to those expressly given. The act does not give power to deal in stocks, nor is such power incidental to any of the functions conferred. (2 Morse on Banking, p. 1310;

As

Weckler v. Bank, 42 Md. 581, [20 Am. Rep. 95]; First Natl. Bank v. Natl. Exch. Bank, 39 Md. 600; First Natl. Bank v. Natl. Exch. Bank, 92 U. S. 122, [23 L. Ed. 679].) By this is meant, not that a national bank may not take title to stocks in compromise of a disputed or doubtful claim, or take them in pledge, or purchase them with a view to protecting or satisfying a claim secured by such pledge. The taking in each of such cases would be merely incidental to the business of making loans, etc., for which the bank is organized. What is prohibited is the purchase for speculation or investment, or the purchase and sale on commission. It would follow that where a national bank had bought stock pledged to it, its duty would be to dispose of such stock as soon as a sale could, to proper advantage, be made. In fact, in this case there was evidence that the national bank examiners had criticised the defendant bank for retaining this stock so long. The only proper purpose of taking the stock was to enable the bank to realize upon its loan. The resale of such stock may properly be regarded as one of the steps taken in the process of collection. A sale under these circumstances was, therefore, we think, a part of the ordinary business of the bank, or to use the language of the by-laws, it was an act 'necessary in the management of the business of the bank.' As such, it was within the powers of the cashier.

"The judgment and the order denying a new trial are reversed."

[Sac. No. 1968. In Bank.-March 5, 1912.]

A. T. KARRY et al., Petitioners, v. SUPERIOR COURT OF SAN JOAQUIN COUNTY, and J. A. PLUMMER, Judge thereof, Respondents.

JURISDICTION - JUSTICES' COURTS BOND FOR COSTS IN ATTACHMENT SUIT ACTION TO ENFORCE BOND PENDING APPEAL FROM JUDGMENT. -Where judgment for costs in an amount less than three hundred dollars is rendered in favor of the defendant in an action in the superior court in which an attachment had been issued, and an appeal therefrom to the supreme court had been duly perfected by the plaintiff and the execution of the judgment stayed, a justice's

court and the superior court on appeal, have jurisdiction of an action to enforce the bond given to secure the payment of the costs in the attachment suit, notwithstanding the appeal from the judgment therein is still pending and undetermined.

ID. PENDENCY OF APPEAL MATTER OF DEFENSE-ERROR IN EXERCISE OF JURISDICTION-CERTIORARI.-The pendency of the appeal from and the stay of the judgment for costs in the attachment suit were mere matters of defense to the action in the justice's court and did not divest it of jurisdiction, nor the superior court of jurisdiction on appeal, and any error committed by such courts in the determination of the legal effect of those matters, although they were shown without conflict by the evidence adduced on the trial, was error in the exercise of jurisdiction that cannot be reviewed on certiorari. ID. ERRONEOUS DECISION DOES NOT EFFECT JURISDICTION.-A court has jurisdiction to decide wrongly as well as correctly, and the only remedy of a party aggrieved by a merely erroneous decision is such as may be afforded by our statutory provisions relating to motions for a new trial and appeals. If no such remedy be given, the action of the trial court within its jurisdiction is conclusive.

APPLICATION for a Writ of Certiorari, to review a judgment of the Superior Court of San Joaquin County, originally commenced in the district court of appeal for the third appellate district, and transferred to the supreme court after decision by that court.

The facts are stated in the opinion of the court.

R. W. Dodge, for Petitioners.

Webster, Webster & Blewett, for Respondents.

ANGELLOTTI, J.-This is a proceeding in certiorari, originally commenced in the district court of appeal for the third district, and transferred to this court after decision by that court.

The purpose of the proceeding, as stated in the prayer of the petition for certiorari, was to annul a judgment of the superior court of San Joaquin County, given and made in a certain action pending therein on an appeal from a justice's court of one of the townships of said county, in which action one Fannie Fieg was the plaintiff, and the petitioners herein were the defendants. The action was one within the jurisdiction of the justice's court, being for the sum of $295.75 for and on account of costs incurred by Fanny Fieg in a certain

action theretofore begun and prosecuted by petitioner Gjurich against her in the superior court of said county, and damages by reason of an attachment levied on her property in said action, and being on the bond or undertaking given for such costs and damages in said action by said petitioner and his co-petitioners, the sureties on such bond. The justices' courts have jurisdiction "in actions upon bonds or undertakings conditioned for the payment of money, if the sum claimed does not amount to three hundred dollars, though the penalty may exceed that sum." (Code Civ. Proc., sec. 112, subd. 5.) It is not questioned that the justice's court acquired jurisdiction of the persons of the defendants in such action, that they appeared therein and presented their defense to the action, that the justice's court gave its judgment in favor of Fanny Fieg, the plaintiff therein, that the petitioner herein, defendants therein, regularly appealed from such judgment to the superior court of San Joaquin County, that the action was regularly tried in said superior court on such appeal, and that said superior court gave jugment on the merits in favor of said Fanny Fieg and against these petitioners for the sum of $145.71.

The claim that this judgment was in excess of the jurisdic tion of the superior court, for of course it is not claimed that certiorari will lie unless such jurisdiction has been exceeded, is based solely on the following facts which are alleged to exist, and which, for all the purposes of this proceeding, may be conceded to exist. The judgment of the superior court in the former action of Gjurich v. Fieg was against the plaintiff and in favor of said Fieg for her costs, taxed at $145.71. This $145.71 was the money said Fieg was suing to recover in her justice's court action against petitioners. Prior to the commencement of the justice's court action, Gjurich had regularly appealed from such judgment to this court, and such appeal is still pending and undetermined. It may be conceded here, as held by the district court of appeal, that the effect of this appeal was to stay "all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein." (Code Civ. Proc., sec. 946.) The point of respondents in this connection, one apparently held good by the learned trial judge of the superior court in giving judgment in the subsequent justice's court action, is that as