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The facts are stated in the opinion of the court.

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CONREY, P. J.—On application of the petitioner a writ of review was issued herein, to determine whether the defendant superior court has regularly pursued its authority in refusing to dismiss an appeal from the justice's court, in an action wherein the petitioner was plaintiff and Frank A. McDonald et al. were defendants. The facts are shown by the return filed herein.

After judgment in the justice's court, the defendants in that action filed notice of appeal on questions of law and filed their undertaking on appeal. On November 17, 1915, the plaintiff filed exceptions to the sureties on the appeal bord. On November 22, 1915, before 1 o'clock P. M., appellants served on the plaintiff a notice “that defendants will justify the sureties on the new appeal bond filed by them in the aboveentitled case, and you will take further notice that defendants will file a new appeal bond in the above-entitled action on the 22d day of November, 1915, at the hour of 4:30 P. M., in Department F of the above-entitled court, at the courthouse in the city of Los Angeles, Cal.” The plaintiff and its attorneys did not appear in the justice's court at the time specified. The justice's docket is silent as to justification by the sureties or as to any appearances by either party before the justice's court at the time specified in the notice of justification of sureties. But the undertaking filed on that day contains the statutory form of affidavit on an undertaking, with a certificate showing that it was subscribed and sworn to before the justice of the peace on that same day, November 22, 1915, and an indorsement was made thereon showing the filing of the undertaking on that day.

The papers on appeal having been duly transmitted to the superior court and filed therein, the plaintiff gave notice of motion to dismiss the appeal upon the grounds:

"1. That the sureties on the undertaking on appeal heretofore filed 'by said defendants did not justify in the manner and form required by law and in accordance with the pro visions of section 978 of the Code of Civil Procedure.

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“2. That the statement on appeal filed by said defendants does not state any grounds of appeal, as required by section 975 of the Code of Civil Procedure."

The motion was based upon the papers on file and affidavits. The affidavits were for the purpose of showing, and tended to show, that the notice of justification of sureties was not served until the next morning after the time for justification as specified in the notice. Counter-affidavits were filed positively affirming that the notice was served between 12 and 1 o'clock on the twenty-second day of November. For the purpose of determining the questions raised as to its jurisdiction to entertain the appeal, the superior court considered these conflicting affidavits, and determined that the notice was served on the 22d at the hour named in the appellants' affidavits. Therefore, as to that disputed fact we consider ourselves obliged to adopt the conclusion of the superior court.

On these facts respondents claim that the failure of the party excepting to the sufficiency of the sureties to appear at the time and place mentioned in the notice of justification was a waiver of such justification, and that the affidavit of the sureties before the justice, as shown on the undertaking itself, wherein they made oath that they were residents and householders and respectively worth the sum specified in the undertaking, etc., establishes a prima facie justification, and that nothing further was required under the circumstances here shown. We think that this contention should be sustained. It is directly supported by the decision in Bank of Escondido V. Superior Court, 106 Cal. 43, [39 Pac. 211), and in Budd v. Superior Court, 14 Cal. App. 256, (111 Pac. 628).

The other ground upon which petitioner rests his contention that the superior court exceeded its jurisdiction is that the statement on appeal does not contain the grounds upon which the parties appealing intended to rely, as required by section 975 of the Code of Civil Procedure. Assuming the statement to be insufficient as specified, it does not result that thereby the court was deprived of its appellate jurisdiction over the case. (Rauer's Law & Collection Co. v. Superior Court, 26 Cal. App. 289, (152 Pac. 957).)

The order of the superior court refusing to dismiss the appeal is affirmed.

James, J., and Shaw, J., concurred.

[Crim. No. 363. Third Appellate District.-August 1, 1916.) In the Matter of the Application of YEE KIM MAH, for a

Writ of Habeas Corpus.

1

CITY OF SACRAMENTO MISDEMEANORS COMMITTED WITHIN CORPORATE

LIMITS-JURISDICTION.—The several justices' courts of the county of Sacramento have jurisdiction over all misdemeanors enumerated by the general laws of the state committed within the municipal limits of the city of Sacramento, as well as those committed outside of such limits and within the territorial boundaries of the

county of Sacramento. [D.--JURISDICTION OF MISDEMEANORS—WHITNEY ACT-EFFECT OF CODE

AMENDMENT-REPEAL OF ACT AS TO SACRAMENTO.-The provisions of the "Whitney Act” (Stats. 1885, p. 213), giving to police courts of cities having a population of over thirty thousand and under one hundred thousand inhabitants exclusive jurisdiction of all misdemeanors punishable by fine or imprisonment, or both by such fine and imprisonment, committed within the limits of such cities, if ever applicable at any time to the city of Sacramento, have been, so far as such city is concerned, repealed or superseded by the enactment of section 1425 of the Penal Code, in the year 1905 (Stats. 1905, p. 705), which provides, among other things, that justices' courts shall have jurisdiction of all misdemeanors committed within their respective counties punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such

fine and imprisonment. ID.--JURISDICTION OF POLICE COURT OF SACRAMENTO—EFFECT OF CHAR

TER.- The provisions of sections 162 and 164 of the freeholders' charter of the city of Sacramento, approved in 1911 (Stats. Ex. Sess. 1911, p. 305), establishing a police court in such city and giving it jurisdiction "of all misdemeanors enumerated by the general laws or by ordinances of the city and of all other crimes cognizable by justices' courts and courts of justices of the peace and police courts under the constitution and laws of the state of California," do not confer upon the police court so

established exclusive jurisdiction of all simple misdemeanors committed under the general laws of the state within the limits of such city, but give it concurrent jurisdiction with the justices' courts of the county of Sacramento.

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APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Third Appellate District.

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The facts are stated in the opinion of the court.

John Q. Brown, for Petitioner.

Lee Gebhart, Hugh B. Bradford, and S. J. Otis, for Respondent.

HART, J.-In the justice's court of Riverside township, in the county of Sacramento, the petitioner was charged with and convicted of a misdemeanor growing out of the violation by him of the legislative act entitled "An act to regulate the sale of poisons,' etc., and, claiming that the judgment of conviction is void because the court before which he was tried was without jurisdiction to try the action against him, he seeks his release from the custody of the sheriff of Sacramento County, by whom he is now being detained by authority of the said judgment of conviction and sentence thereupon imposed upon him, through the writ of habeas corpus.

In the outset it may be observed that, although the act of the violation of certain of whose provisions the petitioner was adjudged guilty prescribes penalties for the first and second convictions thereunder which are within the jurisdiction of justices' or police courts to impose, yet, for a third conviction of the same person for the violation of the provisions thereof, the punishment prescribed is by imprisonment in the state prison for not less than one year and not more than five years. It hence follows that, where a person is charged with the violation of the provisions of said act, together with two previous convictions thereunder, jurisdiction to try the person so offending is in the superior court. (People v. Sacramento Butchers' Protective Assn., 12 Cal. App. 471, 478, (107 Pac. 712].) It is, however, conceded by the petitioner that the conviction of which he here complains was of what is popularly termed a simple or "high-grade'' misdemeanor of which justices' and police courts have jurisdiction, and this concession necessarily carries with it the further concession that he was not charged with and convicted of a violation of the provisions of the statute with two prior convictions thereunder.

The point made by the petitioner, however, results from the following facts: That, as the petition shows and the demurrer interposed thereto by the respondent admits, the crime of which he was convicted was committed within the limits of the city and the judicial township of Sacramento, said

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township being coextensive, territorially, with the municipal limits of said city; that Riverside township, in the county of Sacramento, in which the petitioner was charged with, tried for, and convicted of the offense for which he is now being restrained of his liberty, is not embraced within or a part of the city of Sacramento. In other words, and in brief, the petition shows that the crime of which the petitioner stands convicted was committed within the municipal limits of the city of Sacramento, and that he was charged, prosecuted, and convicted in a judicial township territorially independent of and distinct from the said city and township. It is the contention that under the terms of the so-called Whitney Act (Stats. 1885, p. 213), the police court of the city of Sacramento has sole and exclusive jurisdiction of all misdemeanors punishable by fine or imprisonment, or by both such fine and imprisonment, committed within the limits of said city, and that, therefore, a justice's court whose township or territorial jurisdiction is outside or not embraced within the limits of said city cannot legally acquire or exercise jurisdiction of misdemeanors so committed. It follows, so the argument goes, that the conviction of the petitioner in the justice's court of Riverside township is coram non judice and void.

The “Whitney Act," section 1, provides: "The judicial power of every city having thirty thousand and under one hundred thousand inhabitants, shall be vested in a police court to be held therein by the city justices, or one of them, to be designated by the mayor, but either of said justices may hold such court without such designation, and it is hereby made the duty of said city justices, in addition to the duties now required of them by law, to hold said police courts.

“Sec. 2. The police courts shall have exclusive jurisdiction of the following public offenses committed in the city: First, petit larceny; Second, assault or battery, not charged to have been committed upon a public officer in the discharge of official duty, or with intent to kill; Third, breaches of the peace, riots, affrays, committing willful injury to property, and all misdemeanors punishable by fine or imprisonment, or by both such fine and imprisonment; Fourth, of proceedings respecting vagrants, lewd, or disorderly persons."

The third section invests said court with "exclusive jurisdiction of all proceedings for a violation of any ordinance of said city, both civil and criminal, and of an action for the

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