the same to the Court.-Gates vs. Solomon, 28 Cal., p. 320. An interlocutory judgment in partition, which adjudges that one of the parties has no interest in the property, is not a final judgment as to him, from which he can appeal.-Peck vs. Vandenberg, 30 Cal., p. 11. On the 22d of April, 1863, no appeal could be taken from an interlocutory judgment, in an action for partition to be made. Nor was an appeal from such a judgment, rendered before the passage of the Act, given by the Act of March 23, 1864.--Id.; Moulton vs. Ellmaker, 30 Cal., p. 527. The Act of 1864, allowing appeals to be taken from an interlocutory order in partition, determining the rights of several parties, and directing a partition, did not apply to judgments rendered before its passage.-Peck vs. Courtis, 31 Cal., p. 207.

5. GENERALLY.-Error must affirmatively appear.Todd vs. Winants, 36 Cal., p. 129. If the judgment is broader than the facts alleged and found, it is no ground for a new trial. The remedy is by appeal from the judgment.-Shepard vs. McNeil, 38 Cal., p. 72. If, on an appeal from an order refusing to grant a new trial, the order is reversed, and the cause remanded for a new trial, the judgment of the Court below is vacated.-Fulton vs. Hanna, 40 Cal., p. 278. A finding made upon conflicting evidence will not be disturbed on appeal.-Frost vs. Hartford, 40 Cal., p. 168; Lick vs. Madden, 36 Cal., p. 208; King vs. Meyer, 35 Cal., p. 646. If a demurrer is properly sustained, and the adverse party declines after leave to amend, the judgment will not be reversed to allow an amendment.-Sutter vs. San Francisco, 36 Cal., p. 112. For a technical variance between the evidence, findings, and pleadings, a judgment will not be reversed, if the objection is taken for the first time in the appellate Court.-Dikeman vs. Norrie, 36 Cal., p. 94. A party cannot prosecute two separate and distinct remedies in the Supreme Court for a review of the same question at the same time.-Kirk vs. Reynolds, 12 Cal., p. 99. An appeal from a judgment, and from an order denying a new trial, may be prosecuted separately, or the two appeals may be prosecuted together.-Carpentier vs. Williamson et al., 25 Cal., p. 159.

ded 1879-4.

When may
be taken.

CHAPTER III.

APPEALS FROM COUNTY COURTS.

SECTION 966. When may be taken.

966. (§ 359.) An appeal may be taken to the Supreme Court, from the County Courts, in the following cases:

1. From a final judgment in an action of forcible entry and detainer; in an action to prevent or abate a nuisance; in a proceeding in insolvency; and in any special proceeding;

2. From an order granting or refusing a new trial; from an order granting or dissolving, or an order refusing to grant or dissolve, an injunction; from an order changing, or refusing to change, the place of trial; and from any special order made after final judgment in the cases in this section before enumerated.

NOTE.-An objection that a County Court has no jurisdiction in cases on appeal, where no appeal bond is given as required by the statute, should be made in the Court below. It is too late to raise the question in the Supreme Court.-Howard vs. Harman, 5 Cal., p. 78. Where a party appealed from a Justice's Court to a County Court, and the Justice neglected to send up the notice of the appeal. Held: that the County Court ought not, by dismissing the appeal, deny the appellant the opportunity of moving to compel the Justice to send it up.-Sherman vs. Rolberg, 9 Cal., p. 17. The Supreme Court has jurisdiction on appeal from judgments of the County Court, on questions of fraud made on the petition of an insolvent for a discharge from his debts.-Fisk vs. His Creditors, 12 Cal., p. 281. A refusal by the County Court to permit an amendment of the complaint, is matter of discretion.Canfield vs. Bates, 13 Cal., p. 606.

CHAPTER IV.

APPEALS FROM PROBATE COURTS.

SECTION 969. When may be taken.

970. Executors and administrators not required to give un-
dertaking on appeal.

971. Acts of acting administrator, etc., not invalidated by

reversal of order appointing him.

be taken.

969. An appeal may be taken to the Supreme When may Court, from a judgment or order of the Probate Court:

1. Granting or revoking letters testamentary, or of administration or of guardianship;

2. Admitting, or refusing to admit, a will to probate; 3. Against or in favor of the validity of a will, or revoking the probate thereof;

4. Against or in favor of setting apart property, or making an allowance for a widow or child;

5. Against or in favor of directing the partition, sale, or conveyance of real property;

6. Settling an account of an executor or administrator, or guardian;

7. Refusing, allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share; 8. Overruling motion for a new trial;

9. Confirming report of appraiser setting apart the homestead.

NOTE.-RECORD ON APPEAL.-Estate of Isaacs, 30
Cal., p. 105; Estate of Boyd, 25 Cal., p. 511.

and admin

not

istrators
required to

give under-
taking on
appeal.

970. When an executor or administrator who has Executors given an official undertaking appeals from a judgment or order of the Probate Court made in the proceedings had upon the estate of which he is administrator or executor, his official undertaking stands in the place of an undertaking on appeal, and the sureties therein are liable as on such undertaking.

NOTE.-Stats. 1855, p. 301; Stats. 1861, p. 655.

Acts of
acting
adminis-
trator,
etc., not

CODE OF CIVIL PROCEDUre.

971. When the order or decree appointing an executor or administrator, or guardian, is reversed on dated appeal, all lawful acts in administration upon the estate, performed by such executor or administrator, or guardian, if he has qualified, are as valid as if such order or decree had been affirmed.

by reversal

of order
appointing

him.

NOTE.-Stats. 1855, p. 301; Stats. 1861, p. 655.

Appeal
from
judgment

of Justice's
or Police
Courts.

CHAPTER V.

APPEALS TO COUNTY COURTS.

SECTION 974. Appeal from judgment of Justices' or Police Courts. 975. Party appealing on questions of law alone must prepare a statement. Settlement of statement.

976. If the appeal be upon questions of fact, or of law and fact, no statement need be made.

977. Upon the appeal, the Justice must transmit the case to the County Court.

978. Undertaking on appeal. Justification of sureties. 979. On filing undertaking, execution must be stayed. 980. Miscellaneous provisions on trials in County Courts.

974. (§ 624.) Any party dissatisfied with a judg ment rendered in a civil action in a Police or Justice's Court may appeal therefrom to the County Court of the county, at any time within thirty days after the rendition of the judgment. The appeal is taken by filing a notice of appeal with the Justice or Judge, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both.

NOTE.-An appeal does not lie from an order made by a Justice of the Peace, directing property alleged to have been stolen, and discovered and brought before the Justice by a peace officer, by virtue of a search warrant issued by the Justice, to be delivered to the owner. People vs. Halloway, 26 Cal., p. 651. An appeal lies from a judgment rendered in a Justice's Court, in an

action brought to recover the penalty for an overcharge,
under the provisions of the Act of the 14th of April,
1863, concerning street railroads in this State.-Burson
vs. Cowles, 25 Cal., p. 535. On appeal from a Justice's
Court the record not showing that notice of appeal had
been served on the adverse party-appellant may prove
by his affidavit that it was in fact served.-Mendioca
vs. Orr, 16 Cal., p. 368. The general rule regulating
appeals, which provides that notice may be served on
the party or his attorney, governs cases arising in Jus-
tices' Courts.-Welton vs. Garibardi, 6 Cal., p. 245.

Party on ques

appealing

tions of law alone must prepare a

975. (§ 625.) When a party appeals to the County Court on questions of law alone, he must, within ten days from the rendition of judgment, prepare a statement of the case, and file the same with the Justice or statement. Judge. The statement must contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. Within ten days after he receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments. The proposed statement and amendments must Settlement be settled by the Justice or Judge, and if no amend- statement. ments be filed, the original statement stands as adopted. The statement thus adopted, or as settled by the Justice or Judge, with a copy of the docket of the Justice or Judge, and all motions filed with him by the parties during the trial, and the notice of appeal, may be used on the hearing of the appeal before the County Court. NOTE.-If a new trial is ordered by the County Court,

it should be had in that Court.-People vs. Freelon, 8
Cal., p. 518.

976. (§ 626.) When a party appeals to the County Court on questions of fact, or on questions of both law and fact, no statement need be made, but the action must be tried anew in the County Court.

of

If the

appeal

be upon

questions

of fact, or

of law and fact, no statement need be

NOTE.--No appeal lies to the County Court, upon made. questions of fact, from a judgment by default.--People vs. County Court of El Dorado Co., 10 Cal., p. 19.