The Justice lost all jurisdiction of the case by the transfter of the cause to the District Court. Gamage v. Law, 2 Johns. 192. Sprague v. Shed, 9 Ibid. 140. Fanning v. Trowbridge, 5 Hill, 428. Thompson v. Sayre , 1 Denio, 175. Proudfit v. Henman, 8 Johns. 391.
The motion to transfer the case was properly denied; because after the return of the papers from the District Court, this action had no vitality or existence. It was no longer a cause pending before the Justice, as mentioned in the statute. The papers were ordered by the District Court to be transmitted to the Justice, but without instructions to proceed, for the Court could give no such instructions. The statute has defined the duties of the Justice, and a Superior Court could not restore his lost powers, except in the case, if any, where especially provided by the Legislature.
The County Judge properly refused the mandamus; it was his duty to fully examine the case and ascertain whether the petitioner had been injured, beforehe could award the extraordinary remedy.
JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
OPINION
MURRAY, Judge
The transfer of the cause from the Justice's to the District Court was illegal, and cannot defeat the plaintiff's rights by operating a discontinuance.
After the decision of this Court, the case stood on the docket as if no transfer had ever been made, and it was his duty to proceed and try it. Being disqualified by the statute, he should have transferred it.
The Court below is directed to issue a peremptory mandamus.
See People v. Hubbard , 22 Cal. 34;
Henderson
Allen