APPENDIX.

AN ACT

CONCERNING THE COURTS OF JUSTICE OF THIS STATE, AND JUDICIAL OFFICERS.

[Passed May 19th, 1853.]

The People of the State of California, represented in Senate and Assembly, do enact as follows:

CHAPTER I.-Courts of Justice in general.

§ 1. Enumeration of the Courts of this State.

The following shall be the Courts of Justice for this State: 1st, the Supreme Court; 2d, the District Courts; 3d, the County Courts; 4th, the Courts of Sessions; 5th, the Probate Courts; 6th, the Justices' Courts; 7th, the Recorders' Courts; 8th, the Mayors' Courts.

CHAPTER II.-The Supreme Court.

SEC. 2. Constitution of the Court and qualification of the Jus

tices.

3. Election of the Justices, and their term of office.

4. Vacancy, how filled.

5. Jurisdiction of the Supreme Court.

6. Jurisdiction to review upon appeal.

7. May issue all writs necessary to the proper exercise of their powers.

8. Powers of the Supreme Court.

9. Terms of the Court.

10. Two Justices necessary to transact business or pronounce a judgment.

11. Place of holding the Court.

§ 2. Constitution of the Court and qualification of the Justices.

The Supreme Court of this State shall consist of a Chief Justice and two Associate Justices. Each Justice hereafter elected or appointed, shall be commissioned by the Governor, and before entering upon his duties, shall take the constitutional oath of office.

§ 3. Election of the Justices, and their term of office.

The Justices of the Supreme Court shall be chosen at general elections by the qualified voters of the State. One of the Justices shall be chosen at the general election of the year one thousand eight hundred and fifty-three, and at the general election every second year thereafter, and shall hold his office for the term of six years from the first day of January next after his election. The senior Justice in commission shall be the Chief Justice.

§ 4. Vacancy, how filled.

When from any cause a vacancy shall occur in the office of a Justice of the Supreme Court, the Governor shall fill the same by granting a commission, which shall continue until the election and qualification of a Justice. A Justice to fill a vacancy shall be chosen at the first general election subsequent to the occurrence of the vacancy.

See ante, § 310.

1. The absence of a Judge from the State is not such a vacancy as can be sup plied by the Executive under legislative authority. People v. Wells, 2 Cal. 610.

§ 5. Jurisdiction of the Supreme Court.

The Supreme Court shall have appellate jurisdiction in all cases where the matter in dispute exceeds two hundred dollars; when the legality of any tax, toll or impost, or municipal fine is in question; and in all criminal cases amounting to felony, on questions of law alone.

1. The Supreme Court possesses appellate jurisdiction from a decree rendered in a suit for divorce from the bonds of matrimony. Conant v. Conant, 10 Cal. 249. 2. The first clause of the fourth section of article six of the Constitution, which section provides that the Supreme Court shall have appellate jurisdiction in all cases when the matter in dispute exceeds two hundred dollars; when the legality of any tax, toll or impost, or municipal fine is in question; and in all criminal cases amounting to felony, on questions of law alone, is construed to mean that the Supreme Court shall possess appellate jurisdiction in all cases; provided, that when the subject of litigation is capable of pecuniary computation, the matter in dispute must exceed in value, or amount, two hundred dollars, unless a question of the legality of a tax, toll, impost, or municipal fine is drawn in question. Id.

3. The words "matter of dispute," in section four of article six of the Constitution, conferring jurisdiction on the Supreme Court, mean the subject of litigation -the matter for which suit is brought. Dumphy and Hildrith v. Guindon, 13 Cal. 28.

4. Costs of suit form no part of the matter in dispute. The appellate jurisdiction of this Court in cases of mere money demands, not involving the legality of any tax, toll, impost, or municipal fine, can be exercised only when the amount for which suit is brought exceeds two hundred dollars. Id.

5. In an action of damages, laid at two hundred dollars, defendant plead a general denial, and an offset of one hundred and twenty-five dollars: Held, that the Supreme Court has no jurisdiction, the amount in dispute being less than two hundred dollars; and that the fact that an offset was plead did not alter the case. Simmons v. Brainard, 14 Cal. 278.

6. No appeal will lie from a judgment for two hundred dollars, costs and per centage. The amount must exceed two hundred dollars-that is, the amount in dispute costs and per centage are only incidental to the action. Zabriskie v. Terry, 20 Cal. 347.

7. Plaintiff has judgment against defendant for six hundred dollars. Defendant has judgment in the same Court, but in a different action, against plaintiff for one hundred and ten dollars, costs. Plaintiff moves to set off defendant's judgment, and apply the same as a credit upon plaintiff's judgment. Motion denied. Plaintiff appeals from the order denying the motion: Held, that the Supreme Court has no jurisdiction-the judgment sought to be set off being for less than two hundred dollars. Crandall v. Blen, 15 Cal. 406.

8. A District Court having, on certiorari, affirmed the judgment of a Justice's Court against relator for one hundred and sixty-four dollars, and fourteen dollars costs, relator appeals to the Supreme Court: Held, that the appeal must be dismissed for want of jurisdiction. Morehouse v. Carman, 18 Cal. 693.

9. Plaintiff sued for four hundred dollars and sixty dollars for goods sold and delivered. Defendants plead an offset, and had verdict and judgment for two hundred dollars, with forty-four dollars costs. Plaintiff appeals: Held, that the Supreme Court has jurisdiction; that the "amount in dispute," within section four, article six of the Constitution, is not determined, where plaintiff is appellant, by the amount of the offset pleaded by defendants or found by a jury: that in such case the amount claimed by the complaint, the action being for a debt or damages only, is to be considered in determining whether this Court has appellate jurisdiction in the case. Gillespie v. Benson, 18 Cal. 409.

10. The Court being created by the Constitution, and its powers being therein defined, the jurisdiction conferred by the Constitution must be taken as exclusive of all other jurisdiction. The Attorney General, ex parte, 1 Cal. 85.

11. The appellate jurisdiction of this Court does not extend over judgments of

inferior tribunals, from whence decisions no appellate jurisdiction has been conferred on this Court by the Legislature; and when a certiorari had been issued to a County Court, and a return was made, the proceedings were dismissed for want of jurisdiction. White v. Lighthall, 1 Cal. 347.

12. The Supreme Court will take judicial notice that the Fourth Judicial District is a district within and for the county of San Francisco. People v. Robinson, 17 Cal. 363.

13. The Supreme Court has no jurisdiction of a criminal case not amounting to a felony. People v. Vick, 7 Cal. 165; People v. Cornell, 16 Id. 188.

§ 6. Jurisdiction to review upon appeal.

[1854.] The Supreme Court shall have jurisdiction to review upon appeal:

1st. A judgment in an action or proceeding commenced in or removed from another Court to the District Courts, or County Courts, when the matter in dispute exceeds two hundred dollars; or when the possession or title of land or tenements is in controversy; or when the legality of any tax, toll or impost, or municipal fine is in question; and to review upon the appeal from such judg ment any intermediate order or decision, involving the merits and necessarily affecting the judgment;

2d. An order granting or refusing a new trial; or refusing to change the place of trial of an action or proceeding, after a motion is made therefor in the cases provided by law; or on the ground that a Judge is disqualified from hearing or trying the same; or sustaining or overruling a demurrer; or affecting a substantial right in an action or proceeding.

See ante, §§ 336, 347, 359, 363, note 366.

§ 7. May issue all writs necessary to the proper exercise of their powers.

This Court, and each of the Justices thereof, shall have power to issue all writs necessary or proper to the complete exercise of the powers conferred by the Constitution, and by this and other statutes. See ante, §§ 456, 467.

1. Supreme Court may issue a writ of error. 5 Cal. 190; 8 Id. 297.

§ 8. Powers of the Supreme Court.

[1854.] This Court may reverse, affirm or modify the judg ment or order appealed from, as to any or all the parties, and may, if necessary or proper, order a new trial, or the place of trial to be changed; when the judgment or order is reversed or modified, this

Court may make complete restitution of all property and rights lost by the erroneous judgment or order.

1. See ante, § 345, titles " Restitution of Property and Rights; "Effects of Reversal."

2. Also see ante, § 346, title "Dismissal of Appeal, and Effect of."

§ 9. Terms of the Court.

There shall be four terms of this Court in each year, to commence on the first Monday of January, April, July and October, and to continue until the fourth Saturday thereafter, inclusive, unless all the cases ready for hearing be sooner disposed of. If all the cases ready for hearing be not disposed of, the terms may be continued as much longer as in the opinion of the Court the public interest shall require.

§ 10. Two Justices necessary to transact business or pronounce a judgment.

[1854.] The presence of two Justices shall be necessary for the transaction of business, excepting such business as may be done at chambers; and the concurrence of two Justices who have been present at, and heard the arguments, shall be necessary to pronounce a judgment. If two who have been present at, and heard the argument, do not concur, the case shall be reheard.

§ 11. Place of holding the Court.

[1854.] The terms of this Court shall be held at the City of San Francisco, until otherwise provided for by law.* If a room in which to hold the Court be not provided by the State, together with attendants, fuel, lights and stationery, suitable and sufficient for the transaction of business, the Court may direct the Sheriff of the county in which it is held to provide such room, attendants, fuel, lights and stationery, and the expense thereof shall be paid out of the State treasury.

*AN ACT TO FIX THE SESSIONS OF THE SUPREME COURT AT THE CAPITAL OF THE STATE, [Passed March 24th, 1854.]

The People of the State of California, represented in Senate and Assembly, do enact as follows: SEC. 1. From and after the passage of this Act, the sessions of the Supreme Court shall be held at the capital of the State.