Kraker

Petitioner filed his petition in this court for a writ of review, for the purpose of reviewing the action of the superior court in dismissing an appeal taken by said Kraker from a judgment rendered in the justice’s court against said Kraker and in favor of one Albert Mueller, who was the plaintiff in the action in said justice’s court. No formal answer was made to the writ, but both parties appeared and obtained leave to file briefs. In the briefs the matter has been presented as upon a demurrer to the petition.

From the facts thus admitted it appears that an action was commenced in the justice’s court in 1904, by Albert Mueller, as plaintiff, against petitioner herein, M. Kraker, and judgment rendered against Kraker in favor of Mueller in said action in January, 1905, for the sum of $40 and costs.

In due time said Kraker duly took and perfected an appeal from said judgment to the superior court upon both questions of law and fact. The papers and files in said action were destroyed by the great fire of April, 1906, but subsequently the records in said action were restored by order of the superior court duly given and made.

Thereafter Mueller, the plaintiff in said action, moved…