more water from the San Joaquin River exists not only in the said County of Merced, but likewise in the counties of Fresno, Madera and Stanislaus, in which Miller & Lux is the owner of extensive holdings, and through which counties the said San Joaquin River flows, and owing to the said prejudice it would be impossible for the said plaintiff to obtain a fair and impartial trial in the said action in any of the said counties, and affiant further deposes and says that said action should be transferred for trial to the nearest and most acessible county where the like ground of prejudice does not exist." Beyond the opinion thus expressed by Mr. Clyne, there is no evidence tending to show that a like prejudice against Miller & Lux alleged to exist in Merced county exists in these counties. On the contrary the undisputed evidence is that the conditions likely to affect their minds favorably or adversely to either party, are not such as are claimed to exist in Merced county. Affiant Hogan, in his affidavit, "denies that there is any prejudice in Madera County or in Stanislaus County, against the west side of the San Joaquin Valley, and denies that any reason whatever exists for any such feeling, and states that no such prejudice exists in either of said counties because of the facts alleged and stated in said affidavit of said J. F. Clyne, and the affiant states that about nine-tenths of the peoples in Stanislaus County are residents of the east side of the San Joaquin River and are not interested in any measure in the use of water on the west side of said river, and said persons inhabit lands and reside on lands on said east side of said river in Stanislaus County which are entirely irrigated and supplied with water from the Tuolumne River and these persons are not concerned nor do they care who uses, or where the waters of the San Joaquin River are used, and there does not exist any prejudice against Miller & Lux or against any other corporation because of any water such corporations have acquired the right to use, or because of any intention or effort to acquire any more or additional water of the San Joaquin river; and what is herein stated as to Stanislaus County is equally applicable to Madera County, and the people of said Madera County have no prejudice against Miller & Lux or against plaintiff because of any water now being used or because of any intention or effort to acquire more water from the San Joaquin river, and affiant denies that there is any prejudice against Miller & Lux or against plaintiff, from any cause whatever, in Madera county, or in Stanislaus county, which would prevent the plaintiff in the above entitled case having a fair and impartial trial in either of said counties, and the affiant says that because of the facts herein stated the said case should be tried by a jury impaneled from the qualified jurors of Merced county, and that said case should not be transferred because of any prejudice or bias of the people of Merced County."

Stanislaus county adjoins Merced county on the northwest and Madera on the southeast. Communication between the county seats is by rail and state highway along the valley of the San Joaquin river. Mariposa county lies on the easterly boundary

of Merced county and Mariposa, its county seat, is much less accessible to witnesses residing in the vicinity of the land affected than is the county seat of either Stanislaus or Madera county, in respect of distance and means of travel. While the convenience of witnesses is a separate ground for a change of the place of trial and is not made a ground here, it is nevertheless a matter not to be wholly ignored. Section 398 of the Code of Civil Procedure specifically provides that if the parties do not agree the case must be transferred to the nearest or most accessible court. (Anaheim etc. Co. v. Jurupa etc. Co., 128 Cal. 568.)

It is quite likely that in passing upon the motion the learned trial court felt at liberty and did in fact take into account many facts which in one way or another found their way into the case at the several trials. It is fairly inferable from its opinion found in defendant's brief that the court considered matters which have not been brought to our attention-matters which to its mind may have been of controlling weight. We have not been thus favored. Our conclusion must rest upon the facts found in the record before us.

The order is reversed.

We concur:

BURNETT, J.

CHIPMAN, P. J.

HART, J.

Civil No. 2672.

Second Appellate District. June 25, 1918. HARRIET H. PARAMORE and HELEN MONTGOMERY PARAMORE, Plaintiffs and Respondents, v. HAYWARD COLBY, Defendant and Appellant.

[1] APPEAL-JURISDICTION-DEFAULT IN FILING BRIEF-RELIEF.— Under section 473 of the Code of Civil Procedure an appellant is entitled to relief from his alleged default in filing his opening brief, where the default arose from the fact that in good faith he believed and continued to believe that the action was one in equity and that the appeal was properly taken to the supreme court.

Motion to dismiss appeal from Superior Court of Los Angeles County. Counter motion by appellant, for relief from default.Russ Avery, Judge.

For Appellant-Victor T. Watkins, Sims & Church.

For Respondents-Groff & Van Etten.

This case now comes before the court upon a motion of respondents for dismissal of the appeal, and a motion of appellant for an order permitting him to file his opening brief on appeal.

The defendant appealed to the supreme court from the judg ment entered against him. The action was brought to recover from the defendant a certain sum less than two thousand dollars claimed as the balance due on a contract for the sale of land between the plaintiffs' testator as vendor and the defendant as vendee. If, as claimed by the defendant, the action is a suit in equity,

his appeal was properly taken to the supreme court. If, as claimed by the plaintiffs, it is merely an action at law for money due on a contract, the appeal should have been taken to the second district court of appeal.

The transcript on appeal was filed in the supreme court February 19, 1918. Under rule II of the supreme court appellant's brief was due on the 21st day of March. On March 19th the supreme court made an order extending appellant's time for filing said brief to and including April 20th. On the 8th day of April the supreme court made its order transferring the cause to this court. Appellant's brief has not yet been filed, but on the 22nd day of April it was tendered to the clerk of this court for filing, in accordance with appellant's motion, of which notice had been duly given.

The respondents claim that the appeal was wrongly taken to the supreme court; that therefore the supreme court was without jurisdiction to make the order extending time, but could only make an order transferring the case to this court, unless it (the supreme court) first made an order transferring the cause to the supreme court. These contentions are based upon the provisions of section 4 of article VI of the constitution. [1] Whatever our opinion of these contentions may be, it is not necessary to make decision thereon, since at all events we think that the appellant's motion for relief from his alleged default should be granted. That motion is made under the provisions of section 473 of the Code of Civil Procedure, upon the ground of mistake, inadvertence and excusable neglect arising from the fact that in good faith appellant believed and still believes that the action is one in equity and that the appeal was properly taken to the supreme court. It is true that the supreme court has made its order transferring the cause to this court upon the stated ground that the case is not one within its jurisdiction. But the decision thus made ex parte by the supreme court should not be regarded as binding upon appellant except for the purpose of the transfer. An inspection of the pleadings as set forth in the transcript shows that the defense made by the defendant turns upon the question as to whether the action is in fact of an equitable nature. That is the very matter which will be discussed in the briefs, and upon that matter appellant should have a hearing.

Respondents' motion for dismissal of the appeal and for an order vacating said order extending time is denied. Appellant's motion for relief from default is granted and it is ordered that his brief be filed.

We concur:

JAMES, J.

WORKS, J. pro tem.

CONREY, P. J.

Civil No. 2671. Second Appellate District. June 27, 1918. MARTHA B. SIMMONS. Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, and the HONORABLE C. N. ANDREWS, Judge of Dept. 4 thereof, Respondents.

[1] JUSTICE'S COURT APPEAL-PAYMENT OF FEES-JURISDICTION.— Jurisdiction of a justice's court appeal is not lost for omission to pay at the time of filing the notice of appeal the fees provided by section 981 of the Code of Civil Procedure for transmitting the papers on appeal to the superior court; and, where the undertaking is filed within five days after the notice and the fees paid within the time specified by law for perfecting the appeal, there has been a sufficient compliance with the statute.

Petition for writ of review.

For Petitioner-Albert J. Lee.

For Respondents-Theodore Stensland.

Certiorari. On November 11, 1915, in a certain case wherein petitioner was plaintiff and one Elizabeth G. Clarke was defendant, a judgment was rendered in the justice's court of San Diego township in favor of plaintiff. On November 20 defendant served upon plaintiff's attorney a notice of appeal to the superior court, wherein it was further stated: "You will further take notice that an undertaking on said appeal was this day filed in said justice's court." This notice, together with the undertaking on appeal, was on the same day deposited with the justice of the peace, who endorsed thereon: "Filed November 20, 1915, J. Edward Keating, Justice of the Peace." At the time of depositing and filing these documents the appellant did not pay the justice of the peace the fees provided by law to be paid to the county clerk for filing the transcript on appeal and placing the action on the calendar in the superior court. On December 10th, however, which was within the time specified by law for perfecting the appeal, she did pay to the justice of the peace such fees, which were transmitted to the county clerk, together with the papers on appeal. Thereafter, upon the ground that the court was without jurisdiction to try the case, plaintiff moved to dismiss the appeal, which motion by order of court being denied, petitioner by this proceeding seeks to have the same annulled.

Her contention is that no undertaking on appeal was filed within five days after the filing of the notice of appeal, as required by section 978a, Code of Civil Procedure. As we have stated, the notice was duly served on November 20, on which day it was deposited with the justice who endorsed it as filed of that date. It is conceded that an undertaking in due form was filed within five days thereafter. Petitioner insists, however, that the filing of the undertaking was ineffectual for the reason that the notice of appeal must be deemed to have been filed on December 10, at which time the fees were paid. In the case of Simmons v. Superior Court, 30 Cal. App. 252, wherein this petitioner sought a writ of prohibition to restrain the superior court from proceeding with the trial of the case, upon the ground that since the fees were not paid at the precise time of filing the notice of appeal, the filing thereof was ineffectual for the purpose of conferring jurisdiction upon the

superior court, this court in considering such question, said: "The purpose of the enactment of section 981 of the Code of Civil Procedure was to provide for the payment of the clerk's fees at the time of transmitting to the Superior Court the papers on appeal; and where the fees, though not paid to the justice at the time of presenting for filing the notice of appeal, are nevertheless paid within the thirty days allowed for taking the appeal so as to enable him to transmit the fees, together with the papers on appeal, it is, in our opinion, a sufficient compliance with the statutory provision." [1] We adhere to the conclusion reached in that case, viz., that the notice of appeal was filed on November 20 when deposited with the justice and endorsed as filed of that date, from which it follows that, since the undertaking on appeal was filed within five days thereafter, it constituted a sufficient compliance with the provisions of section 978a, Code of Civil Procedure. "The provisions conferring the right of appeal and prescribing the procedure are remedial and should not be unduly hampered with constructive restrictions which will cast doubt upon the jurisdiction of the appellate court." (Rigby v. Superior Court, 162 Cal. 339.)

not be deemed

It is true that in the opinion in the case referred to, this court, in response to one line of argument urged by the petitioner therein, said: "Assuming, as claimed by petitioner, that the notice of appeal could filed until payment of the fees in question was made, then, since it was left with the justice whose duty it was to file it upon payment of the fees, it should be deemed filed as of the date on which the fees were paid." It is clear, however, that the decision was not based upon the correctness of petitioner's contention, but, even if well founded, the court held it insufficient to warrant the relief asked. The statement based upon the assumed correctness of petitioner's claim was unnecessary to the decision, which was clearly founded upon other grounds, which must be deemed conclusive as to the question involved in the instant case.

Since the notice of appeal, as held in Simmons v. Superior Court, supra, was filed on November 20 and the undertaking on appeal, as conceded, was filed within five days thereafter, it necessarily fol lows that such act constituted a full compliance with the provisions of section 978a, Code of Civil Procedure.

The order sought to be annulled is affirmed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 2343. First Appellate District. June 28, 1918. D. C. DUTTON, Plaintiff and Respondent, v. WILLIAM LOCKEPADDON et al., Defendants; WILLIAM LOCKE-PADDON, Appellant.

[1] DEED OF TRUST-ASSUMPTION OF PAYMENT CONVEYANCE OF LAND-COVENANT OF GRANTEE.-The assumption of payment of a note secured by a deed of trust on real property is sufficiently established by the acceptance of a conveyance of the property con