Webster

I dissent. The allegations of the petition, confessed by the demurrer, are in effect that, in an action commenced in respondent’s court by Charles and Emily Foster, judgment was given in their favor and against the petitioner for the return of certain chattels, and for damages, and for fifty-two dollars and sixty cents, costs of suit. That petitioner, being dissatisfied with the judgment, took and regularly perfected an appeal to the superior court, and in due time paid to the respondent all of his fees as justice of the peace and all other costs incurred by the petitioner on the trial of said cause and for making out and transmitting the appeal papers. That the respondent nevertheless refused for more than five days thereafter *179 petitioner’s demand that he should transmit said papers. Section 977 of the Code of Civil Procedure reads as follows: “ Upon receiving the notice of appeal, and on payment of the fees*of the justice or judge, and filing an undertaking as required in the next section, and after settlement or adoption of statement, if any, the justice or judge must, within five days, transmit to the clerk of the superior court, if the appeal be on questions of law alone,…

This is an original application for a writ of mandate to compel a justice of the peace to send to the superior court the papers on appeal in a civil action which had theretofore been tried before said justice and judgment rendered. The appellant paid the fees of the justice upon the appeal, and also his own costs incurred at the trial of the action, but refused to pay to the justice the costs of the respondent incurred at the trial, and for that reason the justice declined to forward the papers to the clerk of the superior court. If the justice is entitled to receive from the appellant the costs incurred by the respondent at the trial before it becomes his duty to forward the papers to the appellate court, then this application must be denied. An act of the legislature (Stats. 1877-78, p. 134) declares what fees justices of the peace are entitled to charge, and following such declaration in the same act this language occurs: “All fees of justices of the peace, including those on trial and those on appeal, must be paid before the justice shall be compelled to forward any papers on appeal.” This language is very broad, and *178 covers the entire subject. It certainly refers to all…