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Court of the district in which the Probate Court is held, in the following cases :

1st. From an order or decree admitting a will to probate, or refusing the same;

2d. From an order setting apart property, or making an allowance for the widow or children ;

3d. From an order granting letters testamentary or of administration, or appointing a guardian of an infant, or of an insane person, or of a person incompetent to manage his property, or refusing to grant such letters, or to make such appointment, or making such letters or appointment;

4th. From an order directing the sale or conveyance of real property;

5th. From an order or decree by which a debt, claim, legacy, or distributive share is allowed, or payment thereof directed; or by which such allowance or direction is refused;

6th. From an order made on the settlement of an executor, administrator or guardian.

See Belknap's Probate Law, pp. 21-22; also pp. 159-161.
§ 364. Time within which appeal shall be taken.

The appeal shall be taken within thirty days after the order or decree appealed from is entered with the Clerk.

§ 365. Appeals shall be had as soon as possible. [1854.] Appeals from the Probate Court shall be brought to a

hundred and fifty-four, the appeal may be taken within sixty days after the passage of this act. After the appeal is determined, suit may be brought and prosecuted to judgment on the undertaking, in the name of any party beneficially interested therein.

SEC. 299. When a party who has a riglit to appeal, wishes a statement of the case to be annexed to the record, he shall prepare and tile the same within twenty days after the entry of the order, decree or judgment; provided, if the order, decree, or judgment has been made since the first day of October, eighteen hundred and tifty-four, he shall prepare and file such statement within twenty days after the passage of this act.

SEC. 300. The provisions as amended, of Chapter 1, Title IX, of the act entitled “an Act to regulate proceedings in civil cases in the Courts of Justice in this State," passed April 29th, 1851, 60 far as the same do not conflict with the provisions of this act, shall bo applicable to appeals from the Probate Court.

SEC. 301. (1861.) When an order or decree appointing an executor, or administrator, or guardian, shall be reversed on appeal, all lawful acts in administration upon the estate per. formed by such executor, or administrator, or guardian, if he shall quality, shall be as valid as if such order or decree had been affirmed. When any executor or administrator resigns, or is removed, a successor may be appointed, if a necessity therefor exists, without again proving the death and evidence of the testator or intestate.

SEC. 312. (1855.] where it is not otherwise prescribed by law, the Probate Court or the Supreme Court, on appeal, may in its discretion, order costs to be paid by any party to the proceedinge, or out of the estate, as justice may require; execution for the costs may issue out of Probate Court.

See Belknap's Probate Law, pp. 21-31; also pp. 159–161.

hearing at the earliest period practicable. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the District Court may order the appeal to be dismissed.

1. The District Court has only original jurisdiction; it has no appellate powers. Caul field v. Hudson, 3 Cal. 289; Zander v. Coe, 5 Cal. 230.

CHAPTER V.-Appeals to the County Courts from Justices' and

Recorders' Courts.

Sec. 366. Appeals may be taken on questions of law, or on ques

tions of law and fact. 367. Miscellaneous provisions on trials in County Courts.

§ 366. Appeals may be taken on questions of law, or on questions of law and fact.

[1853, 1854.] Judgments in all civil cases rendered by Justices’, Recorders' and Mayors' Courts, may be reviewed by the County Court; when the appeal is taken on questions of law alone, it shall be heard on a statement of the case prepared as prescribed in Title XVI of this act. When the appeal is taken on questions of fact, or on questions of both law and fact, the action shall be tried anew in the County Court, and either party may, on such trial, demand a jury.

See post, ýý 624-628.

1. On appeal from a Justice's Court to the County Court, on questions of law alone, if a new trial be ordered, it should take place in the County Court. Per ple v. Freelon, 8 Cal. 517.

2. The County Court has the sole appellate jurisdiction in all cases, civil and criminal, arising in Justices' Courts, subject to such restrictions as the Legislature may impose, by making the decisions of the Justice final in such cases as may be determined by law. People v. Fowler, 9 Cal. 85.

3. A defendant who has been properly served with process issued out of a Justice's Court, who allows judgment to be taken against him by default, admits the facts alleged in the complaint, and no appeal will lie from such judgment in reference to such facts, there being no issue of fact. The People ex rel. Jones v. The County Court of El Dorado County, 10 Cal. 19.

4. Nor could he ask the Coun: y Court to hear the appeal on questions of law, unless there was a statement filed of the grounds on which he intended to rely. Id.

5. In such case, where the defendant appeals on questions of both law and fact, he is not entitled to a trial de noro. Id.

6. In all cases the issue of fact must be made in the Court of original jurisdiction. The County Court can only retry the issue tried in the Court below. This is what is meant by a trial anew in the County Court, under section six hundred and twenty-six of the Practice Act. Id.

7. Where a cause is heard on appeal in a County Court, for the purpose of try. ing the same de novo, it is the duty of the Court to proceed with the trial on the merits of the case. Coyle v. Balduin et al. 5 Cal. 75.

§ 367. Miscellaneous provisions on trials in County Courts.

[1854.] Upon an appeal heard upon a statement of the case, the County Court may review all orders affecting the judgment appealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to, or dependent upon, said judgment; and may, if necessary or proper, order a new trial. When

a the action is tried anew, on appeal, the trial shall be conducted in all respects, as trials in the District Court. The provisions of this act, as to changing the place of trial, and all the provisions as to trials in the District Court, shall be applicable to trials on appeal in the County Court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the County Court, after notice, may order the appeal to be dismissed. Judgments rendered in the County Court on appeal, shall have the same force and effect, and be enforced in the same manner, as judgments in actions commenced in the District Court.

1. Where a motion is made in the County Court to dismiss an appeal, ou the grounds that the undertaking filed is insufficient, and before the determination thereof the other party offers to amend his undertaking: Held, that it is error to refuse to allow him so to do. Cunningham v. Hopkins, 8 Cal. 33.

2. When an appeal is taken on questions of fact alone, the Appellate Court will not disturb the verdict, when there is any evidence to support it. Escolle and Wife v. Merle, 9 Cal. 94.

3. Where in suit in a Justice's Court for damages to real property, the answer put in issue the ownership of the property, and the defendant moved to transfer the case to the District Court for trial, which motion was refused; and after trial before the Justice, judgment was rendered for plaintiff, and the defendant appealed to the County Court, where the judgment was set aside, and an order made transferring the case to the District Court, where, after trial, plaintiff again had judgment: Held, that the County Court had authority, under sections tive hundred and eighty-one and three hundred and sixty-seven of the Practice Act, to transfer the case to the District Court; that the effect of the appeal to the County Court was to vest it with authority to make all orders necessary for the determination of the case; and as the case was to be tried de novo, and the County Court was incompetent, under the statute, to try it, the transfer to the District Court was necessary. Cullen v. Langridge, 17 Čal. 67.

4. The fact that the sum sued for in such case was only two hundred dollars, does not deprive the District Court of jurisdiction. The fact that the title to real property was involved, and not the sum sued for, establishes the jurisdiction. The issue upon this question of title had first to be found in favor of plaintiff

, before he could recover any damages. This issue involved not only the right of plaintiff to recover, but the entire value of the property; and there being nothing in the record to show this value to be insufficient to support the jurisdiction, the presumptions are in favor of the validity of the proceedings. Id.

1

TITLE X.

MISCELLANEOUS PROCEEDINGS.

CHAPTER I.—Proceedings against joint debtors.

SEC. 368. Parties not summoned in action on joint contract may

be summoned after judgment.
369. Summons, in that case, what to contain and how

served.
370. Affidavit to accompany summons.
371. Answer, when filed and what it

.
372. What will constitute the pleadings in the case.
373. Issues how tried, and verdict what to be.

may contain

§ 368. Parties not summoned in action on joint contract, may be summoned after judgment.

When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, by proceeding, as provided in section thirty-two, those who were not originally served with the summons, and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons.

See gø 32, 145. N. Y. Code, $ 375.

§ 369. Summons, in that case, what to contain and how served.

The summons, as provided in the last section, shall describe the judgment, and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner and retumable within the same time as the original summons. It shall not be necessary to file a new complaint.

$ 370. Afidavit to accompany summons.
The summons shall be accompanied by an affidavit of the plaintiff

, his agent, representative, or attorney, that the judgment, or some part thereof, remains unsatisfied, and shall specify the amount due thereon.

§ 371. Answer, when filed and what it may contain.

Upon such summons the defendant may answer within the time specified therein, denying the judgment or setting up any defense which may have arisen subsequently; or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the Statute of Limitations.

$ 372. What will constitute the pleadings in the case.

If the defendant in his answer deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, shall constitute the written allegations in the case ; if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons with the affidavit annexed, and the answer, shall constitute such written allegations.

$ 373. Issues how tried, and verdict what to be.

The issues formed may be tried as in other cases; but when the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon.

CHAPTER II.- Confession of judgment without action.

Sec. 374. Judgment may be confessed for debt due, or contingent

liability.
375. Statement in writing, and form thereof.
376. Filing statement, and entering judgment.

§ 374. Judgment may be confessed for debt due, or contingent liability.

A judgment by confession may be entered without action, either for money due, or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.

N. Y. Code, $382.

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