called upon to do in the exercise of the jurisdiction thus conferred upon it by the appeal was to construe said section 976 of the Code of Civil Procedure and determine whether he would try the case or send it back. Let it be conceded, without deciding the question, that, under the statute as heretofore construed by the supreme court, the superior court should have sustained the objection of the appellant to trying the case and should have granted his request to reverse the judgment of the justice and send the case back; yet the refusal was only error. If these objections had not been made, or if the appellant had failed entirely to appear after his appeal was perfected, and a trial, after the five days' notice, had been had in his absence in the superior court, there could have been no question as to the validity of the judgment following such trial. The court had the same jurisdiction to overrule appellant's objections that it had to sustain them, or to proceed to judgment in the appellant's absence. Jurisdiction is the power to decide-wrong, as well as right.

The fact is, the petitioner here, having no appeal from the decision of the superior court, is endeavoring to substitute certiorari for an appeal, and thereby have reviewed the objections made and the exceptions taken in the superior court that he is prohibited from having reviewed upon appeal. This he may not do. It has been held in every late case in our supreme court, where the question has been squarely raised, that certiorari goes only to the jurisdiction or power of the court to act, and can never be substituted for an appeal to review the mere errors of a judicial tribunal. (Borchard v. Supervisors, 144 Cal. 10, [77 Pac. 708]; Valentine v. Police Court, 141 Cal. 615, [75 Pac. 336]; Wittman v. Police Court, 145 Cal. 474, [78 Pac. 1052]; Code Civ. Proc., sec. 1068.) The petition for the writ is therefore denied.

Allen, J., concurred.

SMITH, J., concurring.-I concur, with some hesitation, in the conclusion reached by the majority of the court. By the provisions of the Code of Civil Procedure bearing upon the subject, the party appealing from the judgment of the justice's court is allowed thirty days after the rendition of judgment to perfect his appeal (sec. 974). In the following

section two methods of appeal are provided, namely: 1. Within ten days on a statement of the case, on questions cf law alone; 2. Within thirty days without a statement, on questions of fact or of law and fact. In the latter case, the proceeding is not, properly speaking, an appeal; nor is the judgment said to be appealed from reversed, as it would be if found erroneous-on appeal. But the judgment is vacated by the mere act of the so-called appellant, in the exercise of his option, and the cause transferred for all purposes to the superior court; which thereupon acquires original, or quasioriginal, jurisdiction of the case. (Bullard v. McArdle, 98 Cal. 358, [35 Am. St. Rep. 176, 33 Pac. 193]; Holbrook v. Superior Court, 106 Cal. 593, [39 Pac. 936].) The plain meaning of these provisions, therefore, seems to be, that the losing party shall have the option either of appealing from the judgment (in the ordinary sense of the term, appeal) on questions of law only, or of vacating the judgment, and transferring the case for trial of all issues, whether of law or fact, to the superior court; and that the latter course is equally open to him, whether the case has been disposed of in the justice's court, either before or after a trial of the issues of fact in that court. Nor is the language of the act inapplicable to cases where there has been no trial of issues of fact, or even where no issue of fact has been joined. For the expression "questions of fact" may be taken to refer to the issues of fact in the case, generally, that is to say, not only to the issues actually made in the justice's court, but also to those thereafter arising either in that or the superior court. Otherwise-as was once supposed-the pleadings could not be amended in the superior court. (Kitts v. Superior Court, 62 Cal. 203; Ketchum v. Superior Court, 65 Cal. 494, [4 Pac. 492]; Baker v. Southern Cal. Ry. Co., 114 Cal. 506, [46 Pac. 604].) Indeed, "there is . . . some reason for the suggestion that the legislature intended this to be the result of all appeals, and that on an appeal on questions of law alone the cause should be considered as in the superior court for all purposes, and if the trial of issues of fact should be found necessary, it should be had in the superior court." (Maxon v. Superior Court, 124 Cal. 470, [57 Pac. 379].) But, however this may be, it seems at least to be clear that where the appeal is taken on questions of fact" or "on questions both of law and fact," such

was the effect intended. (Bullard v. McArdle, 98 Cal. 358, [35 Am. St. Rep. 176, 33 Pac. 193]. See, also, Sanborn v. Contra Costa County, 60 Cal. 426-427; Curtis v. Superior Court, 63 Cal. 436.) Nor is there anything inconsistent with this view in the provision of section 976 of the Code of Civil Procedure, that in such case "the action must be tried anew in the superior court." For the expression here used will apply equally to trials of issues of law as of fact. (Code Civ. Proc., secs. 591, 592.)

It is, indeed, difficult to reconcile this conclusion with the decisions holding that on appeal from a judgment in a justice's court on questions of fact, the superior court has jurisdiction only to "retry the issues tried in the court below"; or, as otherwise expressed, that "the issues of fact cannot be tried anew in the superior court until after they have been tried in the justice's court." (People v. El Dorado County Court, 10 Cal. 19; Funkenstein v. Elgutter, 11 Cal. 328; Rickey v. Superior Court, 59 Cal. 661; Southern Pacific R. R. Co. v. Superior Court, 59 Cal. 471; Myrick v. Superior Court, 68 Cal. 98, [8 Pac. 648]; Fabretti v. Superior Court, 77 Cal. 305, [19 Pac. 481].) But leaving out of view the objection that this reasoning seems to come within the application of the maxim Qui haeret in litera, haeret in cortice, these cases have, in effect, been overruled by the cases sited supra, holding that amendments of the pleadings may be allowed in the superior court-thus creating new issues that have never been tried, and which, therefore, according to the reasoning of these cases, cannot be tried anew. The leading case has also been overruled on every point involved in it. That case was the dismissal of an appeal from a judgment by default in the justice's court "on questions both of law and fact," and mandamus to compel a trial in the superior court, which was denied on the grounds that the appeal on the questions of law was unavailable, because there was no statement and the appeal "on questions of fact" equally so, because there were no issues of fact in the justice's court, and therefore "no questions of fact to try." (Ketchum v. Superior Court, 65 Cal. 495, [4 Pac. 492].) But the latter point was in effect overruled by the case cited, and other cases cited supra, in holding that the pleadings might be amended in the superior court; and the former expressly by the case of Southern Pa

And in the case

cific R. R. Co. v. Superior Court, 59 Cal. 474. of Lewis v. Barclay, 35 Cal. 214, which was similar, it was held that the dismissal of the appeal was an exercise of jurisdiction, and could not be reviewed "by mandamus nor, indeed, by any other means"; and it was said, in effect, that in the principal case this point had not been made, and hence the case could not be regarded as authority upon the question as to the remedy, or, in other words, upon the question of jurisdiction. The case was, therefore, not authority for the decision in Rickey v. Superior Court, 59 Cal. 661, and Myrick v. Superior Court, 68 Cal. 98, [8 Pac. 648], or for what is said in Fabretti v. Superior Court, 77 Cal. 305, [19 Pac. 481], and in Maxson v. Superior Court, 124 Cal. 471, [57 Pac. 379], The remaining case (Southern Pacific R. R. Co. v. Superior Court, 59 Cal. 474) is based upon the special ground that no jurisdiction had been obtained of the person of the defendant.

It is also to be observed that neither in the principal case nor in the cases affirming it was the question considered whether the action complained of was mere error or in excess of jurisdiction; though the former view seems to be affirmed in Lewis v. Barclay, 35 Cal. 214, and in Holbrook v. Superior Court, 106 Cal. 593, [39 Pac. 936].

A petition to have this cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on August 4, 1905.

[No. 12. Third Appellate District.-June 6, 1905.]

W. W. GREENE, Appellant, v. G. G. MURDOCK, Respondent.

SLANDER-WORDS NOT ACTIONABLE PER SE-OPENING LETTER ADDRESSED

TO DEFENDANT CRIME NOT IMPUTED.-A charge by the defendant that the plaintiff had opened a letter addressed to the defendant from his attorney, without stating that it was done without authority and willfully, is not actionable per se as imputing a crime. ID.-COMPLAINT NOT PROVED NONSUIT.-Where the complaint alleged that the words spoken were understood by those who heard them as imputing a crime, and the answer admitted the words spoken and

alleged their truth, but denied all the other allegations of the complaint, and the plaintiff rested with mere proof of the defendant's property, a nonsuit should have been granted.

ID.-IMMATERIAL ERROR IN INSTRUCTIONS.-Where, under the pleadings and the evidence, the plaintiff was not entitled to a verdict, he is not prejudiced by erroneous instructions to the jury.

APPEAL from a judgment of the Superior Court of Lake County and from an order granting a new trial. R. W. Crump, Judge.

The facts are stated in the opinion of the court.

T. J. Sheridan, and Thomas B. Bond, for Appellant.

Crawford & Crawford, and M. S. Sayre, for Respondent.

BUCKLES, J.-This was an action for slander. The case was tried with a jury. At the trial the plaintiff called and examined the defendant as to his property and rested. Defendant moved a nonsuit which was denied. The defendant then produced witnesses who gave testimony tending to prove the defense of justification pleaded in his answer, and testimony also in mitigation of damages, and to disprove malice on the part of defendant in uttering the words complained of, and rested. Plaintiff in rebuttal then produced witnesses who gave testimony tending to disprove the defense of justification pleaded in the answer. The case was then submitted to the jury, and the jury found a verdict for the defendant, and the court rendered judgment for the defendant for his costs, -to wit, $268.81. A motion was made for a new trial, which motion was denied.

Appeal is taken from the judgment and the order denying a new trial. Briefly, the complaint charges that defendant accused plaintiff of opening a sealed letter from Richard Bayne, his attorney, to his damage in the sum of five thousand dollars. The charge is as follows to wit:—

"The plaintiff is informed and believes that on or about the 15th day of December, A. D. 1900, at the residence of the defendant aforesaid, in the county of Lake, the defendant, in a certain discourse which he then and there had, addressing the said Frank Greene, and in the presence and hearing of the said Frank A. Greene, and the said Andrew Jones and the