The record-union., 1891-04-01


/ The ease was tried in the Municipal
| Court of Appeals on September q, 1879,
! and on that day said court rendered the
| judgment under which the appellant
! claims. No order was made by the
! County Court transferring the case to the
Municipal Court of Appeals until after
/ the latter court had given its judgment.
But on November II, 1879, such order OF
4 transfer was made, and which also di-
/ rected that the same be filed name pro tu7sc
as OF June Ii, 1879.
/ 1T is claimed by respondent that this
+ judgment was void for want of jurisdic-
/ ton. and that, therefore, no titled passed
under the execution sale mentioned, and
/ this is the principal question for decision
here.
/ 1t is unnecessary to determine whether
| II was competent for the Legislature un-
! der the Constitution then in force. to
transfer 80 the Municipal Court OF APP
| peals a portion of the jurisdiction con-
ferred by that Constitution upon the
county, as it is clear that the Municipal
Court of Appeals never acquired any
| jurisdiction of the case of Pateman VS..
McKeen and Norton for other reasons.
! There was no attempt to take an appeal to
the Municipal Court of Appeals, and the
attempted appeal to the County Court
was Intellectual. If it be assumed that the
undertaking given upon such attempted
appeal was sufficient in amount, still the
County Court acquired no Jurisdiction of
the action, as the undertaking was not
filed within thirty days after the rendi-
ton of the judgment in the Justices
Court. Code Civ. Pro-, Secs. 974. 97S;
ColIer VS.. Superior Ct, 59 Cal. I77.)
In the case just cited this court said /:
''To elfectuate an appeal from the judg-
ment Of Justice ofthe Peace, three things
are necessary, viz: The filing of no.
tice Of appeal with the Justice, the service
| =
| party, and the filing of a written under
taking, and all these things must be done
within thirty days after the rendition of
| the judgment. (Secs. 974, 97S, G. G.. P.) All
of these are jurisdictional prerequisites;
none of them can he dispensed with, nor
can any one of them be supplied, or, if
fatally detective, be remedied after the
time limited III the statute; for, until all
| the prerequisites are completed, the APP
peal is not etiectual for any purpose"
This view of the law has been approved
in the later cases of Call VS.. Superior
Court t6S Cal. Z5) and Duterte VS.. Superior
Court (Sf Cal. $3.50 and must be considered
as the settled rule here.
The Act creating the Municipal Court
OF Appeals did not attempt to confer upon
it any other than appellate jurisdiction
the same power and jurisdiction in civil
appeal cases as is possessed by the said
County Court" Act of April l, 1878
RclalulSS loII-Ic, p 3ifD.
And it would seem that in order to call
into exercise this appellate jurisdiction
IN given case, there must have been an
etfectual appeal taken in such case either
directly to such court or to the County
Court. And if in the case of an attempt
ed appeal 10 the County Court the action
should III any manner be transferred
either by force OF the statute referred to
or by order of the County Court, TO the
Municipal Court of Appeals, that court
would not thereby obtain any greater
jurisdiction Of the cause than was DOS
sassed by the County Court.
The appeal to the County Court in the
case OF Pateman VS.. Mckeen and Norton
| being Intellectual for any purpose for the
reasons hereinbefore stated, it necessarily
follows that the judgment rendered on
such appeal in the Municipal Court of
Appeals was without authority and there
fore void.
2. 1t appears that there was a motion
made in the Municipal Court of Appeals
to dismiss the appeal in the case of Pate
man vs.. Mckeen and Norton on the
ground that no appeal had been taken, as
required by law. The motion was denied
The appellant insists that thereby the
respondent here is estopped from assert
ing want OF jurisdiction in that court to
hear and give Judgment in the case.
il 1t be assumed that the RESPONDENT
resisted that motion, still we do not think
that such action would estop him to cues
ton in this action the jurisdiction of that
court. The matter Of this alleged estoppeI
is not set out in the answer of the defend
ant, as it should be if relied upon as a de-
Tense. CLARK vs.. Huber. 20 Cal. 594; Davis
VS.. Davis, 26 Id &c.,
But passing over this defect in the an
swer, the fact that the appellants therein
resisted the motion TO dismiss the appeal
III that action cannot work the estoppel
claimed Every fact in, connection with
the attempted taking ofrthe appeal was
within the knowledge Of the respondent
therein, and being chargeable with a
knowledge Of the law, neither ne nor the
appellant here, who stands in his place,
can be heard to say that he was deceiUed
by any contention of the appellants in
that action, as to the lar governing ap-
peals from Justices Courts, and involved
in the decision of that motion.
The representation, in order to work
an estoppel, must generally be state
ment OF fact. 1t can rarely happen that
the statement of proposition of law win
conclude the party making it from deny
ing its correctness, except when it is un-
oerst0od TO mean nothing but simple
statement of fact" (Bigelow on Estop-
pei, p. 43S.)
There is nothing in this case which
takes it out of this general rule.
Judgment and order affirmed.
DEHAvEN, J.
We concur:
HARRISON, J.,
GARoUTTE, j.