Rabin v. Pierce

Citations

• 103 P. 771
• 10 Cal. App. 734
• 1909 Cal. App. LEXIS 301

Syllabus

<p>Certiorari—Improper Dismissal of Appeal from Justice’s Court— Execution Issued by Justice—Ministerial Act.—When an action appealed from a justice’s court to the superior court has been improperly dismissed therefrom, whatever may be the remedy of the appellants for such improper dismissal, they cannot invoke the writ of certiorari to review and annul the ministerial act of the justice in issuing execution thereafter upon the judgment.</p> <p>Id.—Power of Superior Court to Dismiss Appeal.—The superior court can only dismiss an appeal taken thereto from the justice’s court on questions of law and fact, in case the appeal has not been properly perfected.</p> <p>Id.—Dismissal not Allowable for Want of Prosecution—Duty of Plaintiff to Prosecute Case.—The superior court has no power to dismiss an appeal for want of prosecution by the appellant. It is the duty of the plaintiff to prosecute the appeal to final judgment.</p> <p>Id.—Effect of Perfected Appeal—Duty of Superior Court to Determine Case.—Where the appeal is duly perfected, it is the duty of the. superior court to determine the case as if it had been commenced by the plaintiff therein, and the final judgment must be rendered and enforced in the superior court.</p>