—A dissenting opinion in an ordinary case probably does more harm than good; it weakens the effect of the decision as a precedent, and tends to destroy the respect which we all hope to secure for our decisions at home and abroad. The decision in this case, however, is itself so destructive of precedents established by our predecessors in well-considered cases, I deem it my duty to spread upon the record the reasons for my dissent, and to show, if possible, that in matters of , jurisdiction the superior court is not clothed with that supreme and arbitrary power conceded to it by the decision herein.
Carlson v. Superior Court, 70 Cal. 628, Levy v. Superior Court, 66 Cal. 292, and other kindred cases, in my'opinion, were correctly decided, and should be adhered to. The decisions in those cases went upon the proposition that a court cannot divest itself of jurisdiction by arbitrarily saying it has no right to proceed, any more than it can invest itself with jurisdiction by arbitrarily saying it has a right to proceed. My brothers concede that if a court proceed in a case where the record shows it has no jurisdiction, its orders are void, but hold that in this case the court having jurisdiction to hear and determine the motion to dismiss an appeal, “ its ruling upon the motion was simply an exercise of that jurisdiction, and however erroneous such ruling might be, it could only .be an error of law.” But the dismissal of the appeal in this case was neither moremor less than a refusal on the part of the court to give the appellant a hearing in the *123case, although the record on its face showed that he was entitled to a hearing on the merits. The court has no more right to refuse to hear the complaint and answer the prayer of a litigant who is regularly before it by proceedings on appeal than it has to refuse to hear and determine the claims of parties who are regularly before it by complaint, summons, and answer. It happens occasionally that the court refuses to settle a bill of exceptions, or to proceed with the trial of a case. It might be said in such cases that the court below had jurisdiction to grant or deny the motion, or to grant or deny the plaintiff’s prayer for relief,—that it had to look into the record to determine whether it had jurisdiction or not, — and that its refusal to entertain the matter on its merits, or to hear the case, was mere error; but this court has never denied a writ of mandate when it appeared that the party was entitled to a hearing, and has uniformly held that a court could not refuse to hear a matter upon the merits when it was regularly before it for that purpose. There is no force in the argument that the superior court is liable to commit error on the trial of any case on appeal from the justice’s court for which there is no remedy, and that where a motion to dismiss the appeal is granted, the appellant “ suffers no greater hardship or loss than though' he proceeds to trial, and the court decides against him upon final judgment.” The lameness of the argument consists in the assumption that the court would decide the case against the appellant, and it ignores his right to the judgment of the court upon the merits of the matter which is regularly-before it for determination.
Judgment is entered against A in the justice’s court, and he perfects an appeal to the superior court. The respondent moves to dismiss the appeal, to which motion A objects, and asks to have the cause set for trial. The court overrules the objection, and dismisses the appeal. This is held to be mere error, although the record on its face shows that the court had jurisdiction, and should have tried the case. Judgment is entered against B in. *124the justice’s court, aud he makes an ineffectual attempt to take an appeal. The respondent moves to dismiss the appeal, to which motion B objects, and asks to have the case set for trial. The objection of B is sustained, the motion to dismiss the appeal is denied, and the case proceeds to trial and judgment. In each case the decision of the court was wrong. In the latter case it is conceded that the judgment is void, and should be set aside on certiorari. If the ruling of the court in the first case was merely erroneous, why was it not merely erroneous in the second case supposed? The court had jurisdiction to hear and decide the motion in the first case, and for that reason it is said its ruling was mere error, although it affirmatively appeared on the record that the court had jurisdiction to hear, and ought to have heard, the appeal. Is it not equally true that in the second case the court had jurisdiction to hear and determine the objection and the motion before it? If its ruling in one case was merely erroneous, was it not merely erroneous in the other? The error of the court rests in the assumption that in determining that it has not jurisdiction, although the record affirmatively shows that it has, the superior court may exercise discretion, while it is admitted in determining that it has jurisdiction, when the records show affirmatively that it has not, there is no discretion in the court, and its order is void. If it be true that a court has no power to say it has jurisdiction when the record shows it has not, the converse of the proposition must be true, that if the record shows it has jurisdiction, it has no right to say it has not. The question of discretion or error is entirely foreign to the discussion. If the record shows it has jurisdiction, that is the end of it; the court must proceed. It has no power to say that it will not. If the record shows affirmatively that it has not jurisdiction, it has no power to say that it will proceed. In each case the court is bound by the jurisdictional facts appearing of record; it cannot ignore or dispute them. As said in Levy v. Superior Court, 68, *125Cal. 292: “ The case is not like those which are dependent upon the existence of facts aliunde.”
Beatty, C. J. — I concur in the foregoing opinion of Mr. Justice Paterson.