52 Cal. 622 | Cal. | 1878
The proceeding had in the District Court of the First Judicial District against Covarrubias, and which resulted in a judgment removing him from his office of Sheriff, was had under the provisions of the Act of March 30th, 1874, (p. 911) and not under the provisions of the Penal Code (sec. 772).
On the same day on which the judgment was rendered, Covarrubias took and perfected an appeal to this Court from the judgment, by filing and serving a notice of appeal, and executing and filing an undertaking on appeal, as prescribed by the Code of Civil Procedure (sec. 941).
The statute provides for an appeal in a case of this character (Code Civil Procedure, sec. 939).
And the judgment rendered in the District Court not being of the character mentioned in secs. 942, 943, 944, or 945 of the Code of Civil Procedure, the perfecting of the appeal by giving the undertaking ipso facto operated a supersedeas (sec. 949); for it was not adjudged in the District Court, nor could it have been properly adjudged in this proceeding, that the petitioner was guilty of usurping or intruding into the office of Sheriff, or “ unlawfully holding ” that office within the intent of sec. 949, just referred to.
It results that the demurrer to the petition must be overruled, and it is so ordered, with leave to the respondents to answer within ten days.
