Statement of Facts.

adversary is an error too patent to require discussion. Nor can we infer that no damage resulted to the defendant from this ruling. On the contrary, there may have been the most satisfactory reasons why it was important to the defence to have an inspection of the deeds.

Judgment reversed and cause remanded for a new trial.

No. 2,229.

A. C. HAWKINS, RESPONDENT, v. CURTIS ABBOTT et al., APPELLANT.

PRACTICE JUDGMENT WITHOUT SERVICE OF PROCESS OR APPEARANCE.—A judgment against a person not served with process, and who entered no appearance in the action cannot be sustained.

PRACTICE ON APPEAL-NEW TRIAL SPECIFICATION OF ERROR. When a motion for a new trial is made on a statement, no point will be considered by the Court, and no alleged error will be noticed, unless it is specified under one of the grounds of the motion.

IDEM-APPELLANT'S POINTS.-The appellant's points should accord with or be substantially the same as the specifications in the statement; or should result legitimately from such of these as present the same question. IDEM-PREPONDERATING EVIDENCE-CONFLICTING EVIDENCE.-If the evidence clearly preponderates against the verdict or finding, it is the duty of the Court below to set it aside, but the Appellate Court will not disturb the verdict or finding when the evidence is conflicting.

APPEAL from the District Court of the Seventh District, County of Solano.

This is an action brought by the plaintiff to obtain dissolution of partnership and settlement of account between plaintiff and defendant.

Plaintiff alleges formation of copartnership in 1863 for the purpose of trading in cattle; alleges the accumulation of the profits of said partnership to be five thousand dollars, thirty-five hundred of which is in a note held by defendant against one Robert Allison; asks an injunction against defendant restraining him from the transfer of said note, and also against Allison from paying the same to de

fendant or his assignees, and for the appointment of a receiver to take charge of the note.

The answer denies all the material allegations and sets up a counter claim.

An injunction was awarded in accordance with the prayer of the complaint, which was duly served on Allison by the Sheriff of Solano county.

Judgment was rendered in favor of plaintiff for a dissolution of the partnership, and for the recovery of one half of the net profit of the partnership, amounting to $1,701, part of the Robert Allison note, or its proceeds, and proportionally of the interest due thereon and cost of suit, $531, further ordering the said Robert Allison to pay into the Court $1,701 of said note, and proportionally of the interest due thereon, and also the further sum of $531 cost of suit; further ordering that a copy of the decree be served upon the defendant, and said Allison, and requiring them respectively to comply with the terms thereof within twenty days from the day of such service, in default of which they were to be deemed guilty of a contempt of Court.

The other facts are stated in the opinion.

Defendant moved for a new trial.

The Court over-ruled the motion and the defendant appealed from the judgment, and from the order denying the motion for a new trial.

Robert Allison appealed from the judgment.

Wm. S. Wells, for Appellant.

L. C. Hays and Pendegast & Storey, for Respondent.

RHODES, C. J., delivered the opinion of the Court, Wallace, J., TemPLE, J., and CROCKETT, J., concurring :

The judgment against Allison cannot be sustained, because he was neither served with the process, nor was his appearance in the action entered.

Opinion of the Court-Rhodes, C. J.

The other points presented by the defendant Abbott, relate to his motion for a new trial. When the motion is made on a statement, no point will be considered and no alleged error will be noticed, unless it is specified under one of the grounds of the motion. An argument in such case, in which the merits of the cause of action or of the defense are presented, is of no service to the Court, unless it legitimately arises upon one or more of the specifications in the statement. The appellant's points should accord with, or be substantially the same as the specifications in the statement; or at least should result from two or more of them, which present the same question. It is often the case, that it is proper to specify in the statement, the particulars in which the evidence is insufficient to sustain the verdict, or the finding of any fact, when the evidence in that respect is connicting; for if the evidence clearly preponderates against the verdict or finding, it is the duty of the Court below to set it aside. But it is useless to present to the Appellate Court a point based on such specification; for the verdict or finding will not be set aside where the evidence on the point in controversy is conflicting. Under the ground that the evidence is insufficient to justify the findings in this case, there are many specifications; but the vidence in each of the particulars mentioned was conflictiing, except in the fourth and ninth, and in those two, the facts mentioned are immaterial. The specifications, under the ground that the findings are against law, cannot be sustained. They present principally questions of fact or ques11ons law and fact combined, and it does not appear that the decision of the Court was adverse to the propositions of law laid down in the specifications.

Judgment as to Allison reversed, and as to Abbott affirmed.

VOL XL-42

Statement of Facts.

No. 2,418.

THE PEOPLE, es rel., MINER WALDON, RELATOR, v. A. ELKINS, JUDGE OF THE COUNTY COURT, STANISLAUS COUNTY, RESPONDENT. JUSTICE'S COURT APPEAL FROM.-In an appeal from a Justice's Court a failure to produce in the County Court a duly certified copy of the docket of the Justice of the Peace, is a failure to prosecute the appeal within the meaning of section 387 of the Code. IDEM.-When the County Court has acquired jurisdiction, both of the parties and of the subject matter of the action, its orders thereafter, though they may be erroneous, are not void, unless they contravene some provision of the statute regulating appeals to the County Courts. COUNTY COURT-DISMISSAL OF APPEAL-NOTICE.-An appeal to the County Court may be dismissed, for the causes mentioned in the statutes, “after notice." The Court may err as to the kind, or length, of the notice, but if the appellant have notice in fact the order of dismissal is not void.

IDEM. The writ of certiorari will not lie to an inferior Court, to annul an order which is merely erroneous but not vold, in a matter of which such Court has acquired jurisdiction.

CERTIORARI to the County Court of Stanislaus County.

This case having been tried in the Justice's Court and judgment rendered against him, the defendant appealed to the County Court of Stanislaus County. The case being called at the January term of said Court, both parties appeared by counsel, and the case was set for trial, on the first day of the March term of said Court, on which day the appellant by his counsel moved for a continuance, pending which motion without any previous notice, respondent's counsel moved to dismiss the appeal on the grounds:

First-That there was no proof that a copy of the notice of appeal had never been served upon respondent or his counsel, and:

Second-That no copy of the Justice's docket had been sent up.

Thereupon the Court made an order peremptorily dismissing the appeal, to which ruling the counsel for appellant excepted. The case now comes before this Court on certiorari, and the relator insists that the County Court in hearing and passing upon the motion to dismiss in the absence of proof that notice of said motion had been given

Argument for Relator.

to the appellant, exceeded its authority, and that the order peremptorily dismissing the appeal was extra-judicial and void.

J. H. Budd, and Schell & Hewell, for Relator.

First-No notice had been given appellant.

Second-The statute authorizing the Court to dismiss an appeal, does not authorize the dismissal upon the grounds stated in the motion.

Third-The record shows that appellant has complied with every provision of the statute, and has an absolute right to have his appeal heard and decided upon the merits.

As to the first objection, the statute provides that the provisions of the Civil Practice Act as to trials in the District Court shall be applicable to trials on appeal in the County Court, (and) 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. (Civil Pr. Act, Sec. 367.)

Under this Section the Court derives its authority to dismiss an appeal, and it is dependent upon notice having been previously given by the moving party. The motion to dismiss is in the nature of an independent proceeding, and before the Court can entertain jurisdiction, the parties must be properly brought before it by notice; it is analogous to the appeal itself, unless notice of appeal is filed and served upon the opposite party, the Court cannot entertain jurisdiction of the appeal. (Whipley v. Mills, 9 Cal. 641.)

The notice of the motion should have been in writing; it was a legal proceeding, and it is well settled that a notice in a legal proceeding means a notice in writing. (Gilbert v. Columbia Turnpike Company, 3 John. 109; McEwen v. Montgomery County Mutual Insurance Company, 5 Hill, 104; Lane v. Caney, 19 Barb. 539; Pearson v. Lovejoy, 53 Barb. 411.)

The same rule has been established by this Court. (Bor land v. Thornton, 12 Cal. 448.)