Assuming that the matters and facts set forth in the petition disclose arbitrary action on the part of the superior court in dismissing an appeal regularly taken from a justice's court upon questions of both law and fact, and which appeal was then pending in said superior court, by which order it divested itself of jurisdiction and prevented appellant from having a hearing of such cause upon its merits, we are then confronted with the precise question involved in Buckley v. SuperiorCourt, 96 Cal. 119, [31 P. 8], wherein our supreme court has said, referring to the superior court, "it has jurisdiction to hear a motion to dismiss the appeal as fully as it has jurisdiction to hear and determine the cause upon its merits; and to erroneously dismiss the appeal is no more jurisdictional than to erroneously decide the merits of the cause." While we are much impressed with the reasoning employed in the former case of *Page 154 Hall v. Superior Court, 68 Cal. 25, [8 P. 509], wherein it is said, "that court [the superior court] can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient," nevertheless, we feel ourselves bound by the subsequent ruling in Buckley v. Superior Court,supra, which, while the opinion of a divided court, has never as yet been directly overruled or modified.

Adopting, then, as we feel ourselves bound to do under the circumstances, the rule laid down in the later case, this application must be denied.

Application for writ denied.