Los Angeles herald., 1892-07-21
APPEALS FROM JUSTICES
Judge Shaw Rules on That
Question.
A Case in Question From Austin's
Court.
An Opinion Which Covers the Case From
All Points of view-The Points of
Law Involved in the Matter
Fully Set Forth.


rendered an important opinion relating
to appeal cases from justice courts. The
opinion is concurred in by Judge Clark,
and is given below:
This action comes up on appeal from
III. @. Austin, justice of the peace. The
plaintiff moved the court to dismiss the
appeal on the ground that the transcript
on appeal was not filed in this court
within thirty days after the filing of the
notice of appeal and undertaking, as re-
quired by rule 23. Upon the hearing of
this motion the defendant showed that
within the thirty days allowed by the
rule he had rendered to the Justice the
fees caused by the taking of the appeal,
and had rendered to the clerk of this
court the So required by law to have the
cause docketed here, but that the JUS
tice had refused to accept the money
and demanded payment of all his fees,
including the fees on the trial, as we'll
as those on appeal, as q condition pre-
cedent to forwarding the papers on ap-
peal, and that the clerk of this court
refused to receive the So or docket the
cause until the papers on appeal were
received by him from the justice. Upon
this showing an order was made requir-
ing the justice to show cause why he
had not forwarded the papers, and the
motion to dismiss was continued until
the hearing upon the order to show
cause. In response to the order the
justice now shows that all his fees in
the case amount to SO 25, and that the
defendant never rendered to him more
than So, and that he is ready and will
ing to transmit the papers upon pay
ment of the sum of 1925, to which he is
legally entitled.
This presents the question whether, as
a condition precedent to forwarding the
papers on appeal, the justice of the
peace is entitled to demand payment of
all his fees in the case, or only of such
fees as are caused by the taking of the
appeal. The question was before this
court in the cases of Manning VS.. the
Republican central committee, decided
by Judge CLARK, and Haney vs.. Clark,
decided by Judge Shaw. In both cases
written opinions were filed holding that
the justice could lawfully demand only
the fees caused by the taking of the ap-
peal. The same ruling has been made
by other judges of this court. In the
cases mentioned the only provision of
law cited was section 977 of the Code of
Civil Procedure, and the only question
considered was the construction to be
placed upon that section. 1t provides
that upon receiving the notice of ap-
peal, and on payment of the fees of the
justice and filing on undertaking as re-
quired in the next section the
justice must, within five days, transmit
to the clerk of the superior court" the
papers on appeal. The decisions were
to the effect that the ''fees'' mentioned
in this section were the fees for the
matter then in hand, namely, the tax
ing Of the appeal and the transmission
of the papers.
Justice Austin now calls the attention
of the court to the act of March l, 1878,
(statutes 1878, p. 134).
This is one of the special laws left in
force at the time of the adoption of the
new constitution, and has never been
repealed. 1t was apparently overlooked
both by the court and counsel in the
consideration of the cases aforemen-
toned. 1t relates to Justices fees and
contains, among other things, the fol-
lowing clause: "All fees of Justices of
the peace, including those on trial and
those on appeal, must be paid before the
Justice shall be compelled to forward any
papers on appeal"
In so far as this act may be inconsis-
tent with section 977 of the code of civil
procedure the act must prevail, as it is
the later enactment of the two. The
code took effect January 1, 1878, and the
act March l, 1873.
1t follows that payment must be made
of all the fees of the justice in the case
before he can be compelled to forward
the papers. So far as the opinions in
the former cases can be considered as
precedents upon this question, they are
overruled.
AS the plaintiff has not rendered to
the Justice the amount of all his fees no
order can be made requiring the papers
to be forwarded, and if rule 23 is to be
strictly enforced under all circumstances
the motion to dismiss the appeal must
be granted. But in this case 1T appears
that the appellant has relied on the
previous decisions OF this court and there
has been no lack of diligence on his part.
! 1t would not be just to dismiss his ap-
peal because the decisions on which he
relied are now declared to be erroneous.
The court has power to relieve party
from the consequences of his excusable
mistake, and this is clearly case where
the power should be exercised. 1t will
therefore be ordered that the motion to
dismiss the appeal will be granted un-
less, within ten days, the appellant
causes the papers to be transmitted and
the cause docketed in this court, and
that if these conditions are complied
with the motion will be denied.
In one particular the method of pro-
cedure followed by the appellant does
not meet with the approval of the court,
and as there seems to be much confusion
with the members of the bar generally
on that point, and the code contains no
explicit directions on the subject, it is
proper to indicate what will be consid-
cred by the court the proper practice.
In all cases where the justice for any
reason fails or refuses to transmit the
papers on appeal, on payment of his
fees, it is not the proper procedure to
make oral demand upon the clerk to
have the case docketed. The appellant
should make and file in the clerks Office
an affidavit, properly entitled in the
case, stating the facts, and deposit with
the clerk the five dollars required by
law. Upon this affidavit he should then
apply to the court for an order requiring
the justice to transmit the papers, or
show cause why he does not do 80. It
will be the duty of the clerk, upon the
filing of this affidavit and receipt of the
deposit, to docket the case upon the
register,
If the case is thus docketed within the
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