The Court had a right to withhold permission to answer. (Seale v. McLaughlin, 28 Cal. 672; 2 Waite Pr. 565; 1 Van Sant., Eq. Pl. 196.)

But such service was not necessary in any case, unless ordered by the Court. (McGary v. Pedrorena, 58 Cal. 91.)

MCKEE, J.:

Appeal from a judgment and an order denying a motion to set aside the judgment. The appeal from the order was not taken in time and is, therefore, dismissed.

It appears by the judgment roll that the action was commenced against five defendants to foreclose a mortgage. On the eighth of February, 1879, the plaintiff filed an amended complaint to which the defendants, Johnson and Day, interposed demurrers. Day's demurrer was adjudged to be frivolous and overruled, and leave was denied her to answer. But, at the same time, Johnson's demurrer was sustained, and the Court, by an order made and entered May 14, 1879, granted leave to the plaintiff to further amend his complaint, "the defendant to answer the complaint as amended within five days thereafter." Under this order the plaintiff filed an amendment to his complaint, showing, in substance, that there was a mutual mistake in the execution of the mortgage in this: That the mortgage as executed did not describe the premises intended to be mortgaged, and that in order to make it conform to the actual intention of the parties it was necessary that the description of the mortgaged premises should be amended, etc. A copy of this amendment was served upon the attorneys of the defendant, Johnson. The order did not provide for the service of the amendment upon the defendant Day; nor does the judgment roll show that the amendment, or the amended complaint, was served upon her; yet the Court proceeded to hear the cause upon the last amended complaint and rendered judgment against her for want of answer to the amended complaint.

We think this was error; for although her demurrer to the second amended complaint was adjudged frivolous, and she had been denied leave to answer, yet as the plaintiff, subsequently under the order of the Court, adjudging his complaint insufficient, filed an amendment in substance of his

former amended complaint, the amendment together with the original amended complaint, constituted a new complaint, which superseded all other pleadings in the case. All former pleadings and issues raised thereby were, therefore, substantially vacated. This new complaint necessarily affected all the parties defendants, and especially the defendant Day, who, it was alleged, had an interest in the mortgaged premises. It contained the facts which constitute the cause of action sought to be enforced against all the defendants, and it should have been served upon all, because each was in law entitled to answer it. It was error to limit the service of the amended complaint to one defendant only, when it affected all, and each was entitled to an opportunity to answer it. (SS 465, 432, C. C. P.) The right to answer an amended pleading is one of which a party cannot be deprived even after entry of a default against him on the original pleading; for where a plaintiff amends in matter of substance, he, in effect, opens the default on the original pleading, and must serve his amended pleading upon all the parties, including the defaulting defendant. (People v. Woods, 2 Sandf., 652.)

The case of McGary v. Pedrorena, 58 Cal. 91, is not in conflict with these views. In that case the defendant appeared and answered the amended complaint, and it was held that he had no right to object on appeal that the complaint, as amended, had not been served on the other defendants. In this case, it is the defendant, who was not served, that objects, and appeals from the judgment.

Judgment reversed and cause remanded for further proceedings.

MORRISON, C. J., and McKINSTRY, MYRICK, Ross, and THORNTON, JJ., concurred.

[No. 7,028.- Department Two.]
March 27, 1882.

LUKE DESCALSO v. MUNICIPAL COURT OF APPEALS OF THE CITY AND COUNTY OF SAN FRANCISCO.

JURISDICTION OF THE MUNICIPAL COURT OF APPEALS OF SAN FRANCISCO TRANSFER OF CASE FROM COUNTY COURT RETURN TO WRIT OF CERTIORARI RECORD.- The Municipal Court of Appeals could not acquire jurisdiction of a case except by transfer from the County Court. ID. ID. APPEARANCE. - In the absence of such transfers the voluntary ap pearance of the defendant could not confer jurisdiction.

APPEAL from a judgment in the Fifteenth District Court, City and County of San Francisco, for the plaintiff upon a writ of certiorari. DWINELLE, J.

These proceedings grew out of the case of R. C. Mowbray against Luke Descalso (respondent herein) commenced in the Justice's Court of the City and County of San Francisco, October 1, 1877. The complaint in this last named action was on quantum meruit by Mowbray against Descalso for professional services as a dentist.

The plaintiff recovered judgment against defendant in the Justice's Court for the sum of one hundred and fifty-seven dollars, and seven dollars and eighty cents percentage, and ten dollars and fifty cents costs.

The defendant appealed to the County Court of the City and County of San Francisco.

The transcript on appeal was filed in the County Court, October 22, 1877.

On July 31, 1878, case was dismissed by the Municipal Court of Appeals, on motion of defendant's attorney, no one appearing for plaintiff, but was subsequently, by consent, restored on motion of the plaintiff, and judgment rendered in his favor.

Afterwards, upon a writ of certiorari to review the proceedings, the judgment appealed from was rendered, annuling the judgment of the Municipal Court of Appeals.

The affidavit of plaintiff filed in the lower Court alleged: That on or about the twentieth day of May, 1878, and while said cause was pending on appeal in said County Court,

the said County Court, on its own motion and without the consent of affiant, made a general order transferring all cases then pending in said County Court on appeal from the Justice Court, to the Municipal Court of Appeals of the City and County of San Francisco, for trial.

That no order was ever made by said County Court in said cause, transferring it to said Municipal Court of Appeals.

The return to the writ contains no reference to the above or any order of the County Court transferring the case to the Municipal Court of Appeals.

Colin Campbell, for Appellant.

The general order of the County Court transferring the case of Mowbray v. Descalso, with others, from that Court to the Municipal Court of Appeals, was sufficient to give the last named Court jurisdiction of said case.

1

In fact, no order, general or special, on the part of the late County Court was necessary to transfer any case pending therein, on appeal from the Justice's Court, from said County Court to the Municipal Court of Appeals, after said last named Court had been established by the Act of the Legislature, approved April 1, 1878. (Vide § 12 of said Act-Statutes of Cal. 1877-8, p. 948.)

The case was pending on appeal from the Justice's Court at the time the said Municipal Court of Appeals was organized, and falls within that class of cases mentioned and provided for in Section 12 of Act creating the Municipal Court of Appeals, supra.

That section of the Act makes it the duty of the Clerk of the County Court to transmit to the Municipal Court of Appeals "all the papers in civil cases of appeal then pending and undetermined in said County Court." This act of transferring cases was a merely ministerial act on the part of the Clerk of the County Court, and any general order of the County Court transferring all cases of the class described to the Municipal Court of Appeals, or any order specially made in any particular case, was simply in excess of what was nec

essary.

The order of the Municipal Court of Appeals restoring the case to the calendar, by consent of the attorney for defendant,

after it had once been dismissed on his motion, was sufficient to give that Court jurisdiction of the case, even if we ignore all other proceedings therein; if that Court could in any event have obtained jurisdiction of the subject matter of the action. (Davies v. Packard et al., 6 Wend. 327; Shay v. Superior Court, 57 Cal. 541.)

Stanley, Stoney & Hayes, for Respondents.

But even under the doctrine of Fraser v. Freelon, 53 Cal. 644, the judgment in the case at bar must be affirmed. The question of jurisdiction when raised by certiorari must be determined solely by the return to the writ: The return cannot be contradicted on any question of fact, nor can it be helped out by any other paper. When the writ is issued, the petition or affidavit on which it was granted, except attacked by demurrer, or a motion to quash or supersede the writ, becomes functus officio. When return is made to the writ, the hearing and determination can be had only on that return, and it must show the jurisdiction. In the case at bar, as in Fraser v. Freelon, it does not appear from the return that the case was transferred to the Municipal Court of Appeals from the County Court. The return therefore fails to show that the former Court acquired jurisdiction of the cause of action.

The simple reply to appellant's fourth point, is that consent can only confer jurisdiction of the person, not of the subject matter or cause of action. (Reynolds v. Harris, 14 Cal.; Hayes v. Shattuck, 21 id.; Mahoney v. Middleton, 41 id.)

The COURT:

It appears by the transcript that in the case of R. C. Mowbray v. Luke Descalso, that there was an appeal from the judgment of the Justice's Court to the County Court. But it does not appear that the case was ever transferred to the Municipal Court of Appeals which had jurisdiction to hear and determine civil appeal cases which were directed to be transferred to it from the County Court and none other.

The defendant appeared in the Municipal Court of Appeals; and it is claimed that by so doing he submitted to its jurisdiction, and cannot now be heard to object to it. "The voluntary appearance of a defendant is equivalent to personal