I dissent from the order denying a rehearing of this cause and from the doctrine of the decision. *Page 287 The point decided is that the action was one within the jurisdiction of the justices' court, and therefore, of course within the final appellate jurisdiction of the superior court, and the judgment though erroneous and subversive of the rights of the petitioner secured to him by his appeal to this court entirely irremediable. It is, in short, a confession of impotence on the part of this court to secure to an appealing litigant the fruits of a successful appeal. The argument in support of this conclusion seems to be that no matter how clearly and conclusively it may be made to appear, as matter of fact, and byway of defense, that the action commenced in a justice's court will if it prevails, defeat the rights of the defendant involved in his pending appeal to the supreme court from the judgment of the superior court — the justice of the peace nevertheless hasjurisdiction to render such a judgment, and the superior court to affirm it, and thus accomplish indirectly what the superior court could not do by a direct proceeding (as by the issuance of execution) after the filing of a sufficient undertaking to stay proceedings. For here the opinion of the court concedes — and the fact is — that in the case of Gjurich v. Fieg a sufficient undertaking to stay proceedings pending the appeal had been filed before the action against the petitioners (Gjurich's sureties) had been commenced.
The instance with which this case is compared by way of support of the argument is the disregard of a plea of another action pending in another court. But this is a plea which may be disregarded without an excess of jurisdiction where the other action is not pending in a superior court of exclusive jurisdiction. When a cause is on appeal to this court even the superior court is without jurisdiction to decide any question directly or indirectly involved in the appeal, and if there is a stay of proceedings it can enforce no part of its judgment. Can a justice of the peace do what the superior court cannot do and his action be made final and conclusive by the endorsement of the superior court? If it can it is a result not contemplated by the framers of our constitution when they expressly provided that the powers of justices of the peace should "not in any case trench upon the jurisdiction of the several courts of record except that said justices shall have concurrent jurisdiction with thesuperior courts in" certain cases of forcible entry and detainer and to enforce certain *Page 288 liens on personal property. (Constitution, art. VI, sec. 11.) The supreme court is a court of record — by reason of Gjurich's appeal it acquired exclusive jurisdiction of every question in that case, including the right of the defendant to enforce the judgment for costs. But it seems that a justice of the peace can forestall our judgment upon that question, and that his judgment affirmed by the superior court, though confessedly erroneous, is remediless, because it is no excess of jurisdiction for a justice of the peace to enforce a part of a judgment less in amount than three hundred dollars, while the validity of that judgment is a question pending in this court. I prefer, however, the opposite conclusion of the district court of appeal.
The following is the opinion of the district court of appeal of the third appellate district, rendered on August 30, 1911, referred to and the conclusions of which were approved in the dissenting opinion of Beatty, C.J.: —