Smith v. Superior Court

The petitioner was plaintiff in an action brought in the justice’s court. When said plaintiff had rested his case, the justice granted defendant’s motion to dismiss the action on the ground that plaintiff had failed to prove the cause of action stated in the complaint. Within ten days thereafter the petitioner prepared and filed a statement of the case. Amendments thereto were proposed by defendant, and in due time the statement was settled and allowed, and the record on appeal from the judgment of dismissal was filed in the superior court. The notice of appeal recited that the appeal was taken on questions of both law and fact. When the case was called in the superior court petitioner’s motion to have the cause set for trial was denied, and thereafter an order was entered reversing the judgment of dismissal, and remanding the cause for a new trial in the justice’s court. This order recites that the appeal was on questions of law, that it was heard on a statement of the case, and argued and submitted to the court upon questions of law.

Petitioner contends that he was and is entitled to a trial de novo in the superior court, and hence that such court was without jurisdiction to…