not exercise its option by taking the entire crop, nor would it examine or take the part or any portion of the part it was obligated to take, 33,000 pounds, when the same was ready for delivery. If appellant had accepted the 33,000 pounds on October 12, 1906, and no more, there would have been no shrinkage for which appellant would have been liable, and respondent would have been free of the option on the 'entire crop' and free to dispose of the balance. As it was, respondent was held by appellant for the 'entire crop' none of which it would accept." Respondent's argument seems plausible, but there is no allegation in the complaint as to this element of damage, the allegation of shrinkage being confined to the 33,000 pounds. Hence, the finding as to the excess of 3,264 pounds is outside of the issues. Besides, the evidence would hardly justify the conclusion that more than sixteen and one-half tons of the fruit was of good quality. No allowance could properly be made for the shrinkage of this excess which the evidence does not satisfactorily show was of any value. The result is that the judgment should be reduced by the small amount of $23.50. This appears from the finding itself. It is only a matter of simple calculation, and the error does not require a new trial.

The only other point suggested by appellant is that the court erred in sustaining the objection to questions asked on cross-examination of Mr. Stice as to when and where he sold the fruit and what price he received. He purchased the fruit from plaintiff and had testified that six cents per pound was the highest price obtainable at Anderson at that time. If he obtained a higher price at a different place and at a different time it would have no tendency to discredit his testimony as to the price at Anderson. It does appear that he shipped the fruit, but to what point is not disclosed. Since the witness had not been asked in the direct examination as to any subsequent transaction concerning the fruit, appellant, in the absence of any statement as to what was expected to be shown by the questions, cannot complain of the ruling of the court. Indeed, if error was thereby committed by the court it was absolutely without prejudice, in view of the admission of appellant in its brief that "defendant does not contend that the price for which the pears were so sold was not the full market value of the same." If Stice paid

the full market value of the pears, it is, of course, entirely immaterial where he sold them or what price he received.

Twenty-three dollars and fifty cents should be subtracted from the amount of the judgment, leaving a balance of $897.62, and as thus modified the judgment and the order denying the motion for a new trial are affirmed.

Hart, J., and Chipman, P. J., concurred.

[Civ. No. 675. Third Appellate District.-November 1, 1909.] A. M. BERGEVIN and A. M. BERGEVIN & COMPANY, a Corporation, Petitioners, v. FRED V. WOOD, as Judge of the Superior Court of the County of Amador, and said SUPERIOR COURT, Respondents.

WRIT OF REVIEW-FUNCTION OF WRIT.-While it is often difficult to determine what constitutes a departure from the regular pursuit of its authority by an inferior tribunal, board or officer, within the meaning of section 1074 of the Code of Civil Procedure, yet it is clear that the function of the writ of review is to bring up for review only the question whether such tribunal, board or officer has exceeded its jurisdiction, and it cannot perform the office of a writ of error.

ID. JURISDICTION OF SUPERIOR COURT TO DISMISS APPEAL FROM JUSTICE'S COURT.-In determining upon a writ of review whether a superior court has or has not exceeded its jurisdiction in dismissing an appeal from a justice's court, the question must depend upon whether there was or was not a lawful undertaking on the appeal. If there was no such undertaking as the statute provides, the court had no jurisdiction of the case, and in the lawful exercise of its authority must dismiss the appeal. If there was such an undertaking, it not only had complete jurisdiction of the cause, but could not divest itself of jurisdiction by dismissing the appeal. ID.-POWER OF Court to DETERMINE ITS OWN JURISDICTION.-Where it is implied or expressly declared the court determines its own juris diction beyond the reach of the writ of review, it must be accepted with the qualification that where it is based upon disputed facts, or upon a rational inference from the acts of the parties and the proceeding taken, the court's determination is binding upon a reviewing tribunal in cases of this kind.

ID. INSUFFICIENT BOND UPON APPEAL PROPER EXERCISE OF JURISDICTION. Where there were two appellants, a bond to answer for one only of the appellants is insufficient to justify the appeal from the justice's court to the superior court, and the superior court having properly exercised its jurisdiction in dismissing the appeal, the writ of review has no function to perform in such case, and must be dismissed.

ID.-NEW BOND NOT ALLOWABLE AFTER DISMISSAL.-The superior court had no jurisdiction to allow a new bond to be filed after it had dismissed the appeal; and it could not then be compelled by writ of mandate to exceed its jurisdiction in that regard, whether it had or had not original authority to allow such bond prior to dismissal. It seems no such express authority is given on appeal from the justice's court.

PETITION for writ of review to the Superior Court of Amador County. Fred V. Wood, Judge.

The facts are stated in the opinion of the court.

M. C. Hassett, for Petitioners.

Wm. J. McGee, for Respondents.

BURNETT, J.-This is an application for a writ of review occasioned by the dismissal of the appeal of the said A. M. Bergevin & Company from a certain judgment of the justice court of Township No. One in said Amador county. The order of dismissal was based upon the ground of the insufficiency of the bond on appeal.

It is not claimed that the proceedings of the superior court up to the time of said dismissal were in any respect irregular, but the contention is that the court, in holding that the bond was insufficient, exceeded its jurisdiction, or, in other words, did not "regularly pursue" its authority within the meaning of section 1074 of the Code of Civil Procedure, providing that "The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer."

What constitutes a departure by a court from the regular pursuit of its authority is often difficult to determine, although the decisions of our supreme court would seem to leave no doubt as to what should be the conclusion here.

In Buckley v. Superior Court, 96 Cal. 120, [31 Pac. 8], it is said: "It will be noticed that the foundation of the writ is essentially and necessarily an excess of jurisdiction; for no act of tribunal, board or officer exercising judicial functions, done or made within its jurisdiction, can ever be the subject of attack by writ of review. In the matter now before us, it is apparent that the court had jurisdiction of the subject matter and of the persons; all the parties were before the court; the appeal was regularly taken; and we are at a loss to understand why the court had not the same jurisdiction to hear a motion to dismiss the appeal as it had to proceed to a trial of the cause upon its merits. If it had jurisdiction to hear the motion, and as to that matter there can be no question, then its ruling upon the motion was simply an exercise of that jurisdiction, and however erroneous such ruling might be, it would only be an error of law in no manner subject to review by an original proceeding in this court. In this case the court had jurisdiction to hear the matter, and it would be an absurdity to say that upon the submission of the matter the court had jurisdiction to deny the motion to dismiss the appeal but no jurisdiction to grant it. As was said in Central Pacific R. R. Co. v. Placer County, 46 Cal. 670: 'It has been settled by a long series of decisions in this state that a writ of certiorari brings up for review only the question whether the inferior officer, court or tribunal has exceeded its jurisdiction, and cannot be used as a mere writ of error for the correction of mistakes, either in law or fact committed by the inferior tribunal within the limits of its jurisdiction.'" The doctrine of the Buckley case is undoubtedly liable to be pressed so far as to virtually destroy the operation of the writ of review in relation to the proceedings of the superior court. It seems to be held there that said court has the power to determine its own jurisdiction, at least in cases of appeal from the justice court. If so, in a case where an appeal from the justice court is pending in the superior court and a motion is regularly made to dismiss the appeal, and it appears on the hearing of the motion. that no undertaking whatever has been given, since the court has the power to hold-erroneously, it may be admitted-that no undertaking is required or, contrary, to the fact that a sufficient one has been furnished, it would be no excess of jurisdiction for the court to deny the motion to dismiss the appeal.

But, seemingly, there is a marked distinction between the jurisdiction to hear a motion to dismiss an appeal and the jurisdiction to try the cause. If the motion is regularly made to dismiss, no doubt the court has jurisdiction to determine it, but if it should appear upon the hearing of the motion that the court has no jurisdiction to try the cause it is difficult to understand how it would have any authority to deny the motion and retain the case for trial.

Here there is no possible doubt that the superior court had authority to hear the motion, but its jurisdiction to try the case depends upon the question whether there was an undertaking on appeal. If there was no such undertaking as the statute provides, it had no jurisdiction of the case, and therefore in the lawful exercise of its authority, the only course to pursue was to dismiss the appeal. If there was such an undertaking, it not only had complete jurisdiction of the cause but it could not divest itself of said jurisdiction by dismissing the appeal. If the court has the power to determine its jurisdiction, it would follow that whether there is or is not an undertaking, the court may have jurisdiction either to try or not to try the cause.

The truth is, undoubtedly, that where it is implied or expressly declared that the court determines its own jurisdiction beyond the reach of the writ of review, it must be accepted with the qualification that where it is based upon disputed facts, or upon a rational inference from the acts of the parties and the proceedings taken, the court's determination of its jurisdiction is binding upon a reviewing tribunal in a proceeding of this kind.

In the case at bar, the court dismissed the appeal for the reason stated that the surety (The American Surety Company of New York) had bound itself to answer for only one of the appellants, "that as a surety was entitled to stand upon the precise terms of his contract, to hold that the surety company was liable for both defendants was to read something into the contract that had not been assented to by the surety." It appears also by the return of respondent that counsel for appellants at the argument of the motion to dismiss the appeal expressed a grave doubt as to the sufficiency of the undertaking. This doubt is amply justified by the language used which, as far as necessary to quote, is as follows: "Whereas, the said defendants are dissatisfied with the said judgment