Dissenting.—I am of opinion that this court has no jurisdiction to affirm the judgment in this cause here on appeal, fof the reason no appeal is permitted “from a judgment of the district (superior) court rendered in a case appealed from a justice, police or recorder’s court. ’ ’ Par. 1067, Ariz. Pen. Code 1901; Hall v. Territory, 8 Ariz. 409, 76 Pac. 476; Territory v. Moore, 9 Ariz. 122, 80 Pac. 316. Such was the law at the date of the rendition of the judgment, and so the law remains, with slight exceptions, since the amendments thereto became effective October 1, 1913. Section 1139, S. B. 108, an act entitled “An act to provide for the review of judgments and orders of the superior eoiirts of the state of Arizona, and the practice and procedure in the supreme court upon such review. ’ ’ (Ariz. Pen. Code 1913, sec. 1156.) This case is not within any of the exceptions mentioned in said statute.
In order that this court may affirm a judgment before it on appeal, jurisdiction of the subject matter must have been acquired through the appeal. No appeal is allowed from such a judgment of the superior court, as the record in this case presents; therefore no jurisdiction of the subject matter of the appeal was acquired by this court. This court only acquired jurisdiction to dismiss the appeal. Thomas v. Speese, 14 Ariz. 556, 132 Pac. 1137.
The power of this court to affirm a judgment of a lower court depends upon whether the court has acquired judisdic*106tion of the cause through an appeal. The power to dismiss a cause filed in this court depends upon the inherent power of the court to control its records and files. The ultimate effect upon the judgment of the lower court may be, and frequently is, the same whether the judgment is affirmed or the appeal dismissed; yet this court is required to exercise its powers within the requirements of the law, although some other course may have the effect to produce the same results.
Whether the law as it existed prior to October 1, 1913, permitted a justice of the peace of precinct No. 17 to try and punish one charged with the commission of a misdemeanor in precinct No. 1 of the same county, in which precinct at the time the offense was committed and tried and a duly qualified and acting justice of the peace was residing, and no change of venue was ordered, I express no opinion. That question becomes unimportant since October 1, 1913; and now the law clearly limits the jurisdiction of justices of the peace to offenses committed within their respective precincts in which such courts are established. Subd. 3, sec. 1291, S. B., supra (Ariz. Pen. Code 1913, sec. 1308).
I cannot concur in the order affirming the judgment, for the reasons above stated. I am of the opinion that the appeal should be dismissed, and- that this court has no authority off law to otherwise order.
Application for rehearing denied.