Price v. Van Caneghan

5 Cal. 123

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Bryan, J., delivered the opinion of the Court.

Heydenfeldt, J., concurred.

The appellant having been defeated in an action before a Justice of the Peace for Santa Clara County, gave notice of appeal to the County Court, and served the same upon the adverse party, and filed a proper bond upon his appeal. The notice of appeal stated that he appealed from “ the whole judgment;” that judgment being for one hundred and seventy-eight dollars and ninety cents, debt, with ten percent, damages and costs of suit.

There is no dispute, but that the respondent received this notice of appeal; yet the Court below decided the notice to be insufficient, and dismissed the appeal.

It is difficult to perceive upon what ground the judgment of the Court was based. The amendments to the Practice Act, Statutes of 1854, page 66, section 38, provides, that when 'the appeal is taken upon questions of law alone, it shall be heard upon a statement of the case ; when the appeal is taken upon questions of fact, or upon both questions of law and fact, the action shall be tried anew in the County Court, the party being entitled to a jury if he desires it. The party could readily discover whether the appeal was upon the law merely, or for the purpose of a trial “ de novo,” by looking at the records. The object of notice is both to apprise the opposite party of the appeal, and as to what the appeal is from. In this case, there could be no mistaking it, and there could be nothing more definite than an appeal from “ the whole judgment.”

The judgment of the County Court dismissing the appeal, is reversed with costs, and the cause remanded for new trial.