1. 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.

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

3. In all cases the issue of fact must be made in the Court of original jurisdietion. 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.

§ 627. Upon the appeal, the Justice shall transmit the case to the County Court.

[1853, 1854, 1855.] Upon receiving the notice of appeal, and on payment of the fees of the Justice, and filing an undertaking as required in the next section, the Justice shall, within five days, transmit to the Clerk of the County Court: if the appeal be on questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal, and the undertaking filed; or if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal and the undertaking filed; and the Justice may be compelled by the County Court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the Justice, by the party or his attorney. In the County Court, either party shall have the benefit of all legal objections made in the Justice's Court.

1. Where a party appealed from a Justice's Court to a County Court, and the Justice neglected to send up with the record the notice of appeal: Held, that it was error to refuse to allow appellant the opportunity of moving to compel the Justice to send it up, by peremptorily dismissing the appeal. Sherman v. Rolberg,

9 Cal. 17.

2. Even were this not the case, when such an omission occurs, leave should be granted to file a good bond. Billings v. Roadhouse, 5 Cal. 71.

3. The omission of the words "to pay to" will not invalidate the obligation of an appeal bond. Id.

4. It is always within the power of a Court, when exercising proper discretion, to extend the time fixed by law, whenever the ends of Justice would seem to demand such an extension. Wood v. Forbes et al., 5 Cal. 62.

5. A Justice of the Peace may refuse to send up the transcript of a cause tried before him, until his fees are paid by appellant; but if he sends it up without receiving his fees, the fact that they are not paid is no ground for dismissing the appeal. Bray v. Redman, 6 Cal. 287.

6. An offer to pay the Justice his costs, on appeal, so soon as the appeal papers are ready to transmit to the County Court, is not a sufficient tender, under the statute. The fees must be tendered unconditionally. People ex rel. v. Harris, 9

Cal. 571.

7. The Justice is not bound first to make out the papers, and then rely on his fees being afterward paid. Id.

8. An appeal is made by filing and serving the notice of appeal. Both requisites must exist to complete the appeal. A failure to notify the adverse party is fatal. Whipley v. Mills, 9 Cal. 641.

9. One of the conditions upon which an appeal is allowed from Justices' Courts, is the payment of the costs of the action. McDermott v. Douglass, 5 Cal. 89.

§ 628. Undertaking on appeal. Justification of sureties.

[1853, 1854, 1855, 1860.] An appeal from a Justice's Court shall not be effectual for any purpose, unless an undertaking be filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judg ment, including costs, when the judgment is for the payment of money; or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property, and shall be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the said action in the County Court. When the action is for the recovery of specific personal property, the undertaking shall be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the Court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the County Court, and will obey any order made by the Court therein. The undertaking shall be accompanied by the affidavits of the sureties that they are residents of the county, and are each worth the amount specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; or the bond shall be executed by a sufficient number of sureties who can justify, in the aggregate, to an amount equal to double the amount specified in the bond, or a deposit of the amount of the judgment, including all costs appealed from, or of the value of the property, including all costs in actions for the recovery of specific personal property, with the Justice. And such deposit shall be equivalent to the filing of the undertaking in this Act mentioned; and in such cases the Justice shall transmit the money to the Clerk of the County Court, to be by him paid out on the order of the Court. The adverse party may, however, except to the sufficiency of the sureties within

five days after the filing of the undertaking, and unless they, or other sureties, justify before the Justice before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal shall be regariei as if no undertaking had been given.*

1. Superior Court of the City of San Francisco was abolished March 30th, 1857.

§ 629. On filing undertaking, execution shall be stayed.

If an execution be issued, on the filing of the undertaking staying all proceedings, the Justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same.

1. A Justice of the Peace has jurisdiction to grant appeals, and to stay proceedings thereupon; and his action cannot be reviewed on certiorari. Coulter. Stark, 7 Cal. 244.

§ 630. [1853, 1854.] Repealed.

§ 631. Costs allowed to prevailing party.

[1854, 1855.] Costs shall be allowed to the prevailing party in a Justice's Court.

§ 632. [1854, 1855.] Repealed.

§ 633. Money collected by Constable or Sheriff shall be paid over to the Justice.

Justices of the Peace shall receive from the Sheriff or Constables

* STATUTES OF 1856, 26.

An Act Concerning Appeals in certain Cases.

SECTION 1. When judgment has been rendered in the Court of a Justice of the Peace, in a County Court, a District Court, or the Superior Court of the City of San Francisco, against any organized or incorporated city or town in this State, said city, or town, or county, against which such judgment was rendered, may appeal therefrom to any Court of competent jurisdiction, by filing a notice of appeal with the said Justice of the Peace, or Clerk of either of the other Courts as above mentioned, and serving a copy thereof on the opposite party or his attorney, within the time and manner provided for appeals in other cases; and said appeals shall be effectual for all purposes, and shall operate as a supersedeas to any execution that has been or may be issued on said judgment, without the filing of a bond or the payment of costs to the Justice or other Courts, by the said city or town, or county so appealing.

SECTION 2. The Mayor, Attorney or Chief Officer of any city, or District Attorney, or the President of the Board of Supervisors of any county, shall have power to give the notice herein required to be given, and to perfect such appeal on behalf of their respective corpora

tions or counties.

of their county, all moneys collected on any process or order issued by their Courts respectively, and all moneys paid to them in their official capacity, and shall pay the same over to the parties entitled or authorized to receive them, without delay. For a violation of this section, they may be removed from their office, and shall be deemed guilty of a misdemeanor.

§ 634. Justice may require security for costs.

Justices of the Peace may, in all cases, require a deposit of money, or an undertaking, as security for costs of Court, before issuing a summons.

§ 635. Preceding sections applicable to Justices' Courts.

[1860.] The provisions of sections thirty-two, three hundred and sixty-eight, three hundred and sixty-nine, three hundred and seventy, three hundred and seventy-one, three hundred and seventytwo, three hundred and seventy-three, five hundred and nineteen, five hundred and twenty, five hundred and twenty-three, five hundred and twenty-five, five hundred and twenty-six, five hundred and twenty-seven, five hundred and thirty-one, five hundred and thirtytwo, shall be applicable to Justices' Courts and actions therein.

TITLE XVII.

PROCEEDINGS IN CIVIL CASES IN RECORDERS' AND MAYORS' COURTS.

SEC. 636. Complaint, contents of. Must be verified. 637. Summons shall issue on filing complaint, returnable in not less than four days.

638. Defendant may plead orally or in writing.

639. Trial by jury, when defendant is entitled to.

640. Appeals may be taken to the County Court.

641. Proceedings shall be conducted as in actions in Justices' Courts.

642. This title applicable to Mayors' and Recorders' Courts.

§ 636. Complaint, contents of. Must be verified.

Civil actions in Recorders' and Mayors' Courts shall be com menced by filing the complaint, setting forth the violation of the orlinance complained of, with such particulars of time, place, and manner of violation, as to enable the defendant to understand distinetly the character of the violation complained of, and to answer the complaint. The ordinance may be referred to by its title. The complaint shall be verified by the oath of the party complaining, or of his attorney or agent.

§ 637. Summons shall issue on filing complaint, returnable in not less than four days.

Immediately after filing the complaint, a summons shall be issued, directed to the defendant, and returnable either immediately, or at any time designated therein, not exceeding four days from the date

of its issuance.

§ 638. Defendant may plead orally or in writing.

On the return of the summons, the defendant may plead to the complaint, or he may answer or deny the same. Such plea, answer, or denial, may be oral or in writing, and immediately thereafter the case shall be tried, unless for good cause shown, an adjournment be granted.

§ 639. Trial by jury, when defendant is entitled to.

In all actions for violation of an ordinance, where the fine, forfeiture, or penalty imposed by the ordinance, is less than fifty dollars, the trial shall be by the Court. In actions where the fine, forfeiture, or penalty imposed by the ordinance, is over fifty dollars, the defendant shall be entitled, if demanded by him, to a jury of six

persons.

§ 640. Appeals may be taken to the County Court.

From a judgment in a civil action in a Recorder's or Mayor's Court, an appeal may be taken to the County Court. The appeal shall be taken and the proceedings thereon conducted in the same manner as appeals are taken from a judgment in a civil action in a Justice's Court, and as the proceedings thereon are conducted.