Majority
p. 768[S. F. No. 256. In Bank. March 14, 1906.] In the Matter of the Estate of ROBERT RUSSELL, Deceased.
Headnote
Transfer of Cause from District Court of Appeal—Practice—Erroneous Appeal.—Where the appeal was erroneously taken to the district court of appeal, instead of to this court, the proper practice is to file the record in the court to which the appeal was taken and to move in that court to transfer the cause to this court. A motion in the first instance in this court for the transfer of the cause from the district court of appeal will be denied.PETITION to transfer a cause from the District Court of Appeal, appealed to that court from the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.
The facts are stated in the opinion of the court.
Duncan McPherson, Jr., for Appellant, Petitioner.
Charles M. Younger, Jr., for Respondents.
A petition has been filed in this cause for an order to transfer the appeal to this court; the appeal having, as it is claimed, been erroneously taken to the district court of appeal. The court desires to state what they consider the correct practice in cases where the notice is of an appeal to the wrong court. In all such cases, of course, the appellant will file the record in the court to which his appeal has been taken, and the proper practice is to make the motion to transfer in that court. Until the cause is' transferred, the matter is pending there, and that court, whether the supreme court or the district court of appeal, is, as we construe the constitu
p. 769
tional provision on the subject, authorized to make the proper order for the transfer of the cause.
For this reason alone the petition is denied.